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 before ruling on any continuance motion.

        ►      The Hearing Officer must have a formal amended notice of hearing issued and served if there is any change of arrangements prior to the hearing, any adjournment without setting a definite date, or any change from arrangements announced “on-the-record” at a multi-day hearing.

CAUTION: The only situation where a formal amended notice is not needed is where a Hearing Officer makes an on-the-record announcement adjourning a multi-day hearing to a fixed date, time and place, and those arrangements remain unchanged.

♦      The support staff must send a copy of any notice of hearing or amended notice of hearing to the court reporter under contract to the agency

7.20   PREPARATION BEFORE LEAVING THE OFFICE

Hearing Officers must prepare themselves to conduct the hearing:

□      Confirm your travel arrangements (state car, air tickets, hearing room, reporter, etc.) a few days in advance of your planned departure.

□      Compare the contents of the Correspondence Tracking System (CTS) database for the case(s) with the paper case file you will take to the hearing, to be certain that you will have all necessary papers at the hearing.

□      Use the PERCCINS "Ad hoc reports" feature to ascertain the histories of the bar-gaining unit and other bargaining units existing among employees of the employer.

□      Review any Prehearing Statement (and/or papers received from the parties using a “side-by-side” sheet or other method) to identify the issues framed in the case.

□      Review Commission precedents on the issues framed, so that you will be prepared to fulfill key duties of a presiding officer, as follows:

WAC 10-08-200 ADJUDICATIVE PROCEEDINGS -- PRESIDING OFFICER. The presiding officer shall have authority to:

(1) Determine the order of presentation of evidence;

                           . . . .

(4) Rule on procedural matters, objections, and motions;

(5) Rule on motions for summary judgment;

(6) Rule on offers of proof and receive relevant evidence; . . . .

The payback for advance preparation occurs when you are called upon to rule on relevance and materiality objections at the hearing!

□      If you have indication or suspect that the parties may request a continuance for settlement talks, you may want to contact them for a status update before you leave the office. (The Executive Director’s policy has been to deny continuance requests received after the Hearing Officer has left the office for the hearing.)

□      Assemble materials that will or may be needed at the hearing, as follows:

        □      The case file, including all petitions and correspondence.

        □      Volume 2 of the PERC Staff Manual.

Hint: Use Post-it Notes to mark pages that you will likely need to use.

        □      Attendance forms, for completion by participants at the hearing.

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

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

        □      Pens and paper for the Hearing Officer's hearing notes.

        □      Your calendar (to ascertain dates for adjournments and briefing schedules).

7.21 PREPARE THE HEARING ROOM

The Hearing Officer is responsible for arranging the hearing room and for establishing an appropriate tone for the proceedings.

♦      Work with the court reporter to arrange tables and chairs so that lines of sight and sound will be clear, and the court reporter's needs for electrical outlets, microphones, etc. are accommodated.

♦      Make reasonable provision for members of the public and news media to observe the hearing.

        ►      Hearings in PERC unit clarification cases are open to the public.

        ►      Requests by the news media to set up equipment or take photographs should be accommodated, so long as they do not interfere with the hearing process.

CAUTION: Do not permit video or still photographers to alter the placement of hearing participants for their own benefit. If necessary, ask the parties' representatives to take their places off-the-record for news photographers to record the general scene.

7.21.1 Identify the Participants

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

CAUTION: Because RCW 42.30.040 prohibits any conditions on attendance at public meetings, DO NOT INSIST that any person sign the PERC appearance sheet.

♦      If an expected party does not appear, the Hearing Officer should make an effort to contact the absent party, to ascertain their further interest in the proceedings.

        ►      If an absent party cannot be located, the Hearing Officer must describe the failed effort on-the-record.

        ►      If an absent party requests a continuance, the Hearing Officer must open the hearing and rule on that request on-the-record.

        ►      If an absent party is contacted, but declines to participate in the hearing, the Hearing Officer must open the hearing and put whatever information has been obtained on-the-record. Then proceed to conduct the hearing with the remaining party(-ies).

♦      If the absent party is the incumbent exclusive bargaining representative, try to find out if it is abandoning the bargaining unit. If informed of a disclaimer, the Hearing Officer must open the hearing and put whatever information has been obtained on-the-record. The hearing should then be closed and the Hearing Officer should present the situation to the Operations Manager or Executive Director.

7.21.2 Last-Minute Settlement Discussions

Just prior to going on the record, the Hearing Officer can inquire about the possibility of settlement, or of stipulations on any additional issues.

♦      Be mindful of the costs of having the Hearing Officer and court reporter waiting while the parties discuss settlement, and that unit and eligibility issues are not a mandatory subject of collective bargaining under City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

♦      If all issues in a unit clarification case are resolved, the Hearing Officer should have all parties execute a settlement document.

        ►      The main purpose of the settlement document must be to clearly withdraw the unit clarification petition.

        ►      The parties can have their agreement preserved as part of the record in a unit clarification case by including details in their settlement document, but the Hearing Officer and the Executive Director must reject any settlement that results in a facially-inappropriate bargaining unit configuration.

        ►      The parties can ask to have the terms of their agreement incorporated into the order closing the unit clarification case, but the Hearing Officer and the Executive Director must then closely scrutinize the settlement for propriety before they affirmatively apply the agency blessing to it.

        ►      If the parties wish to draft a formal agreement for filing at a later date, the Hearing Officer should set a clear time limit for submission of the agreement to the Commission.

CAUTION: Do not open a hearing just to read stipulations into the record! Issuance of an order cannot proceed until we have documented stipulations, and it takes three weeks for the court reporter to submit a transcript of the hearing.

7.22 GENERAL PRINCIPLES FOR HEARINGS

The Model Rules of Procedure authorize the Hearing Officer to control the course of hearings conducted in adjudicative proceedings (including unit clarification proceedings before PERC) conducted under the APA. See WAC 10-08-200.

♦      Be certain that representatives of all parties are present in the hearing room and ready to proceed before going "on-the-record".

♦      Be certain the court reporter is ready each time you begin/resume a hearing.

♦      Parties and members of the news media are permitted to operate audio tape recorders for their own purposes.

♦      Read the opening statement and other "script" materials slowly and clearly. (Bear in mind that you tend to read faster than you would ask or answer a question.)

♦      State clearly when going on-the-record or off-the-record. Use:

        ►      "The hearing will be in order" to start transcription of the proceedings.

        ►      "Off the record" to interrupt transcription of the proceedings.

        ►      Use: "Back on the record" to resume transcription of the proceedings.

♦      If a party engages in misconduct, WAC 391-08-020 authorizes the Hearing Officer to respond, up to and including exclusion of the person from the hearing.

♦      If you encounter problems on which you desire advice, go "off-the-record" and contact the Operations Manager or Executive Director.

♦      Number all exhibits in a single, consecutive sequence, beginning with "1". The court reporter will number the exhibits.

CAUTION: Resist attempts by practitioners to number exhibits in separate sequences, by party: (e.g., "Petitioner's Exhibit 1, Petitioner's Exhibit 2"; "Employer's Exhibit 1, Employer's Exhibit 2; and "Joint Exhibit 1"). The transcript becomes ambiguous if a participant refers to "Exhibit 1" without the appropriate prefix. If a party persists in wanting the sources of exhibits identified, remind them that the transcript will indicate which party makes each motion for admission.

♦      Sequestering of witnesses is normally done only at the request of a party.

        ►      Sequestering witnesses will be appropriate where close questions of fact will have to be decided in the case, so that the testimony of one witness might influence the testimony of another.

        ►      Before sequestering can be granted, the Hearing Officer must be certain there is an appropriate area for witnesses to occupy while waiting.

♦      Recess the hearing about once per hour, for the benefit of the court reporter.

        ►      Try to take advantage of natural breaks between witnesses, to avoid interrupting the testimony of a witness.

        ►      The Hearing Officer may direct that the witness refrain from discussing the case with others during a recess or meal break. (The Hearing Officer should be more forceful where witnesses have been sequestered.)

♦      The Hearing Officer must deal with any witness-scheduling problems:

        ►      Consider and rule on parties' requests to take witnesses "out of order" (in relation to the case-in-chief of the party calling them). This can make the record seem disjointed, but can be justified to accommodate work schedules, etc.

        ►      Consider and rule on objections (usually by the employer) that calling a large number of employees to the hearing site will cause unnecessary disruption of the employer's operations. If the hearing is being held at or near the employer's premises, the party who intends to call a large number of witnesses can be directed to stagger their arrival at the hearing site, such as:

                •      One employee on the witness stand,

                •      The next witness "waiting in the wings" to avoid delays in the hearing process, and

                •      Excusing witnesses who have finished testifying to return to work (perhaps with instructions as to who should come to the hearing site next).

HEARING "PATTER"

The sections below contain statements and questions for ALL issues that are likely to occur in PERC unit clarification case hearings.

♦      Use these materials SELECTIVELY! Some issues will normally have been stipulated in the prehearing conference conducted by the Hearing Officer.

        ►      The Hearing Officer must enforce all stipulations in a "Statement of Results of Prehearing Conference" for the case being processed!

        ►      The Hearing Officer will only use all of the following materials if a case goes to hearing without prehearing processing, or where no stipulations can be obtained.

♦      Material to be recited by the Hearing Officer in a hearing is set forth in large type.

7.23 OPENING STATEMENT OF HEARING OFFICER

The hearing will be in order. This is a formal hearing before the Public Employment Relations Commission on a unit clarification petition filed by (petitioner's name) concerning certain employees of  (employer's name) . The case number is (number) . My name is (your name) and I am the Hearing Officer for the Commission.

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

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

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

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

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

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

After the hearing is closed and any written arguments are filed, the Executive Director or I will issue a written decision that will be mailed to all parties. Until that decision is issued, please direct all motions and argu-ments to me. The parties will have the right to appeal to the Commission, under the rules.

My role is as the impartial judge. The parties have the primary responsibility for presenting their own evidence and arguments. Unit clarification proceedings are of an investigatory nature, however, and the Commission has an obligation to assure it has sufficient information to clarify the bargaining unit under Washington state law. I may ask questions or call witnesses to obtain information needed for impartial administration of the statute.

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

For the employer? ________.

For the exclusive bargaining representative? ______.

Are there any other appearances? ______.

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

          CAUTION: Do this even if it is obvious there are/will be no intervenors!

♦      If any other organization makes an appearance, say: Please state your name and the name of your organization for the record. ___________. Then continue with: Following the completion of my opening statement, you will be permitted to move for intervention and to state the basis for your motion.

♦      If any individual employee attempts to make an appearance or intervene, say: Please state your name for the record. ___________. Then continue with: Am I correct in understanding that you are an individual employee who is or may be affected by this proceeding? ________ Then continue with: Your request to appear and participate at this hearing must be denied. Individual employees lack legal standing to file or pursue unit clarification cases. You may want to discuss your situation with one or both of the parties, as one of them may want to call you as a witness in this proceeding, and your interests may align with those of one of the parties.

7.24 INTERVENTION MOTIONS

If there is another organization present and it seeks intervention in the proceedings, take up the motion(s) for intervention one at a time, saying:

Mr./Ms. (Representative of Intervenor) , please state on whose behalf intervention is desired? ____________

Then continue with: Please state the basis on which your organization seeks intervention in this proceeding? _____

Then ask each of the original parties, in turn: Mr./Ms. (Representative of other party) , what is your position on this motion for intervention?

□   If none of the other parties objects to the intervention, say: In the absence of any opposition to the motion for intervention, the other parties are understood to be stipulating that (Name of new intervenor) is an organization that has a genuine interest in this unit clarification case, and that it claims ["to represent the disputed position"] or [insert description of claim made]. Is there any objection to that understanding?

From the employer? ____________

From (name of union originally involved) ? ____________

□   If there is an objection from one of the original parties: Get position statements from all original parties and give the intervening party an opportunity to respond.

7.24.1 Ruling on Motions for Intervention

The Hearing Officer must rule on each motion for intervention. The Hearing Officer may go off-the-record to consider the motion(s) for intervention, and may contact the Executive Director or another staff member for advice.

♦      Doubts should generally be resolved in favor of intervention, but:

        ►      An intervenor cannot argue for a different bargaining unit configuration.

        ►      Intervention may be "GRANTED CONDITIONALLY" subject to some stated condition being met.

♦      To rule on a motion for intervention, the Hearing Officer should announce:

The motion of (name of intervenor) for intervention is:

     □   Granted or

        □   Denied or

     □   Granted, conditioned upon (specify conditions) or

     □   Granted for purposes of this hearing, with a final ruling reserved for the Executive Director.

7.24.2 Ruling on Additional Motion(s) for Intervention

If more than one organization is seeking intervention, the Hearing Officer must repeat the foregoing process for each intervenor.

7.25 STIPULATIONS AND SUPPLEMENTAL ISSUES

In most cases, the hearing in a unit clarification case will be limited to a few issues that remain unresolved.

7.25.1 Importing the Prehearing Statement

If you have issued a prehearing statement, import it into the record by saying on-the-record:

A Prehearing Conference was held in this matter, and a Statement of Results of Prehearing Conference was issued on (date) . The statement became part of the record in this proceeding, in the absence of timely objections. That statement indicates certain stipulated made by the parties, and those stipulations remain binding on the parties. That statement listed the following issue(s) for hearing in this case: (Read the disputed issues from the Statement of Results of Prehearing Conference) . This hearing will be limited to those issues.

7.25.2 Additional Stipulations

If parties enter into additional stipulations after a Statement of Results of Prehearing Conference is issued, the Hearing Officer must put those stipulations on-the-record at the hearing, by saying:

During an off-the-record discussion, the parties have stipulated to the following matters: (state the stipulations made) .

After reciting the additional stipulations, ask each of the parties, in turn:

Do you so stipulate on behalf of the employer? _________

Do you so stipulate on behalf of the organization? ______

Do you so stipulate on behalf of the intervenor? ______

7.25.3 Confirming  Stipulations  Where  New  Intervenor  Appears

If a motion for intervention is granted at a hearing, the Hearing Officer must ask the new party to join or reject each stipulation made earlier in the proceedings.

♦      If possible, review the prior stipulations with the new party before opening the hearing or in an off-the-record discussion, to avoid burdening the record with undue explanation and discussion, but then put the results of that off-the-record discussion on-the-record.

♦      Go on-the-record to confirm the new intervenor's acceptance or rejection of each previous stipulation, saying:

Intervenor status has been granted to [ name of intervenor ] at this hearing, and the stipulations previously made in this matter have been discussed with the intervenor. Mr./Ms. [  representative of new intervenor  ] do you stipulate:

     □   The Commission has jurisdiction in this matter under Chapter _____ RCW.

     □    (Name of other participating union) is the exclusive bargaining representative of (describe bargaining unit represented by organization originally involved) employed by the (name of employer) under Washington law.

     □   The petition is timely filed.

     □    (Recite other stipulation(s)) .

Obtain a "Yes" or "No" answer from the intervenor, or clearly identify any discrepancy.

        ♦      If the new intervenor declines to join one or more previous stipulations, you will need to expand the scope of the hearing.

        ♦      If other parties claim surprise or a lack of preparation, you may need to grant them a continuance (with or without first taking evidence offered by the new intervenor).

7.25.4 For Oddball Situations

The Hearing Officer must fashion a limiting statement to fit the particular situation.

7.26 PRELIMINARY MOTIONS

One or more of the parties may desire to make a preliminary motion. The Hearing Officer must solicit such motions in each case, by asking:

Are there any preliminary motions? _______

7.26.1 Matters Raised "Out of Sequence"

The invitation of preliminary motions often brings out matters which would normally be covered later in the hearing. In such situations, the Hearing Officer should say:

Mr./Ms. (representative of moving party) , that subject will be     covered later in this hearing. Please assert your position at the appropriate time.

CAUTION: Having once deferred an argument, the Hearing Officer must take care to solicit the argument from the party at the appropriate time.

7.26.2 Matters Not Appropriate for Unit Clarification Cases

The invitation to make preliminary motions sometimes brings out matters which are not proper subjects for consideration in unit clarification cases. Examples are:

♦      Evidence about the quality of representation that has been or may be provided by a union is not admissible in any unit clarification proceeding.

♦      Evidence about internal union affairs is not admissible in any unit clarification case.

♦      Enforcement of a subpoena is not a subject for a unit clarification hearing.

        ►      Hearing Officers have no authority to rule on such matters.

        ►      A party that seeks enforcement of a subpoena must present the matter to the Executive Director for possible forwarding to the Commission, and it will be the Commission itself that determines whether to authorize the party or the Attorney General to seek enforcement of the subpoena under the APA.

♦      Unfair labor practice allegations are not a proper subject for hearing in unit clarification cases.

        ►      Unit clarification proceedings are decided from a "current and future" perspective, and are not a forum to remedy past injustices.

        ►      Unfair labor practice proceedings are decided from a "past practice" perspective, and invoke remedial authority if a violation is found, but are not a forum to resolve the future unit placement of employees or positions.

♦      Evidence concerning discrimination by a union is not admissible in any representation proceeding before the Commission.

♦      Compliance with the federal Landrum-Griffin Act is not a proper subject of a hearing before PERC.

If an inappropriate subject is raised in a preliminary motion, the Hearing Officer should say:

Mr./Ms. (representative of moving party) , your motion concerns a matter that is not a proper subject in a unit clarification case, and cannot be pursued here.

If the party persists, the Hearing Officer should point out the availability of unfair labor practice proceedings.

7.26.3 Ruling on Preliminary Motions

If a preliminary motion is made on a legitimate issue, the Hearing Officer should solicit the positions of the other parties before making a ruling:

What are the positions of the other parties with respect to this motion? Mr./Ms.   (Representatives of other parties, in turn) ?

♦      If one or more of the other parties opposes the motion, ask:

Mr./Ms. (person who made motion) do you wish to respond?

If in doubt about the appropriate ruling, the Hearing Officer can properly recess the hearing and contact the Operations Manager or Executive Director for advice. The Hearing Officer must then announce a ruling, as follows:

The motion of _____ for ______ is

□   Granted (may be accompanied by a brief statement of the reasoning on which the ruling is based).

□   Denied (may be accompanied by a brief statement of the reasoning on which the ruling is based).

□   Reserved for a ruling by the Executive Director.

SUBSTANTIVE INQUIRIES FOR

UNIT CLARIFICATION CASES

7.27   THE ROLE OF THE HEARING OFFICER

Materials on witnesses and evidence are in Chapter 9 of the PERC Staff Manual.

The Hearing Officer has an affirmative obligation to obtain a complete record in the “investigatory” setting of unit clarification proceedings, and so may engage in more questioning of witnesses than would be done in the “adversary” context of unfair labor practice or nonassociation proceedings. Even then:

♦      Use the following materials selectively (marking sections in advance with "Post-It Notes" or similar devices) as appropriate to the particular case you are hearing.

♦      Avoid restating what you hear - A Hearing Officer who restates things already said when interacting with witnesses or advocates on-the-record only lengthens the record, and risks injecting errors or misstatements.

♦      Maintain your impartiality and avoid an appearance of advocacy by saving up your questions on a separate pad of paper until a direct/cross or re-direct/re-cross round of questioning has been completed, and then:

        ►      Omit your saved questions that have been asked by the parties’ advocates; and

        ►      Limit your questions to topics directly probative to the case you are hearing.

7.28 IDENTIFICATION OF PARTIES

Each party must be correctly identified in the record. Where the identification of parties is or may be an issue, the Hearing Officer must say:

Mr./Ms.   (Representative of each party, in turn)  , please state the full name of your organization for the record?

♦      Where a party has a lengthy official name or is commonly known by some acronym or abbreviation, it may want its nickname used. Try to conform with such requests, particularly if it will avoid confusion between two or more similarly-named unions.

♦      If any party asks to change the name by which it is listed on the PERCCINS docket record or to add an acronym or abbreviation, the Hearing Officer must inquire:

Is there any objection to having the formal papers amended as just stated? ____________

CAUTION: Parties are generally permitted to use any name or acronym they desire, but watch for similarities of names or acronyms that could cause confusion.

        ►      If there is no objection, say: Hearing no objection, the amendment is allowed.

        ►      If there is an objection, the Hearing Officer must consider the argument and solicit / consider the response of the party seeking the change. Then announce a ruling, as follows:

          □   The objection is overruled, and the amendment is allowed. OR

          □   The objection is sustained, on the basis that ___________. OR

          □   The objection will be referred to the Executive Director for a ruling.

CAUTION: Repeat this process for each proposed name change.

7.28.1 Entity Claiming Mis-identification as the "Employer"

Every unit clarification case must arise out of an employment relationship, and the employer is a necessary party. Occasionally, the entity named as the "employer" will assert that it is not really the employer of the employees involved. A Hearing Officer who learns of such a claim should discuss the situation with the Operations Manager or Executive Director in advance of the hearing.

♦      At a hearing, the Hearing Officer must ask the entity named as the "Employer" in the petition to supply one or more of its officials to testify. The Hearing Officer should call that person as a witness and place him/her under oath. Ask the witness:

Please give your name and address for the record ____.

Continue with: Please identify the entity you are associated with, and your position with that entity? ____. Then continue with: Please state what you believe to be the facts regarding who is the employer of the employees at issue in this proceeding? _______.

The Hearing Officer should ask additional questions to obtain an adequate record.

♦      Key considerations on which to make a record concerning "wrong employer" claims include:

        ►      Is the named employer a "public" entity or a "private" entity?

        ►      Is the named employer a joint venture created by two or more public entities, either formally or informally? (If so, get any relevant contracts, resolutions, or other documents in evidence.)

        ►      What relationship, if any, exists between the entity named in the petition as "employer" and the entity that is claimed to be the true employer?

        ►      Are the petitioned-for persons "employees" or "independent contractors"?

♦      Give the entity that was named as "employer" an opportunity to examine the witness.

♦      Then give other parties an opportunity to cross-examine the witness.

♦      The Hearing Officer and/or the parties may call additional witnesses, if needed to make a complete record.

Issuance of a formal order will be necessary. Dismissal is appropriate if the wrong employer has been named.

CAUTION: The normal preference is to go forward with a hearing on all issues, in order to avoid the expense associated with going back for another day of hearing if an argument on one issue is rejected. However, having the wrong employer at the hearing would render the record made on all other issues useless. If there is a credible basis to believe the petitioner has named the wrong employer, the hearing can properly be limited to that issue.

7.28.2 Entity Claiming Mis-identification as the Exclusive Representative

Every unit clarification case must arise out of an employment relationship, and the exclusive bargaining representative of the disputed position is a necessary party. Occasionally, the entity named in a petition will assert that it does not really represent the employees involved. A Hearing Officer who learns of such a claim in advance of a hearing should discuss the situation with the Operations Manager or Executive Director.

♦      At a hearing, the Hearing Officer must ask the entity named as "exclusive bargaining representative" in the petition to supply one or more of its officials to testify. The Hearing Officer should call that person as a witness and place him/her under oath. Ask the witness:

Please give your name and address for the record ___.

Continue with: Please identify the organization you are associated with, and your position with that entity? ____. Then continue with: Please state what you believe to be the facts regarding who represents the employees at issue in this proceeding? _______.

The Hearing Officer should ask additional questions to obtain an adequate record.

♦      Key considerations on which to make a record concerning "wrong union" claims include:

        ►      Does the union represent any employees of the employer?

        ►      How/when was that bargaining relationship established?

        ►      What relationship, if any, exists between the entity named in the petition and the entity that it claims is the true exclusive bargaining representative?

        ►      Are there any historical facts or documents bearing on the question?

♦      Give the entity that was named as "exclusive bargaining representative" an opportunity to examine the witness.

♦      Then give other parties an opportunity to cross-examine the witness.

♦      The Hearing Officer and/or the parties may call additional witnesses, if needed to make a complete record.

Issuance of a formal order will be necessary. Dismissal of the case (or at least dismissal of the party if another union has intervened) is appropriate if the wrong union has been named.

CAUTION: The normal preference is to go forward with a hearing on all issues, in order to avoid the expense associated with going back for another day of hearing if an argument on one issue is rejected. However, having the wrong party at the hearing would render the record made on all other issues useless. If there is a credible basis to believe the petitioner has named a wrong party, the hearing can properly be limited to that issue.

7.29 JURISDICTION                             

Parties have the right to contest the jurisdiction of the Commission (or which particular statute is applicable) at any point in proceedings. Where jurisdiction is or may be at issue, the Hearing Officer should say:

The petition in this case purports to invoke the jurisdiction of the Public Employment Relations Commission under:

□   Chapter 28B.52 RCW or

□   Chapter 41.56 RCW or

□   Chapters 41.56 and 53.18 RCW or

□   Chapters 41.56 and 54.04 RCW or

□   Chapter 41.59 RCW or

□   Chapter 41.76 RCW or

□   Chapter 41.80 RCW.

Ask each party other than the petitioner, in turn: Mr./Ms. _______, what is your position regarding the Commission’s jurisdiction?

♦      If a "jurisdiction" dispute is raised, ask the petitioner to respond:

Mr./Ms. (petitioner's representative) , what is the petitioner's response to the objection to the Commission asserting jurisdiction in this matter?

♦      If a jurisdiction issue is raised, offer the parties an opportunity to present testimony from witnesses concerning the jurisdiction issue. The Hearing Officer should take part in the examination of witnesses, as needed to obtain an adequate record.

7.29.1 Making a Record on "Jurisdiction"

Key considerations on which to make a record include:

♦      What employer and employees are involved? Washington has a fragmented statutory structure, with one statute of general jurisdiction and several statutes of limited jurisdiction. Fine lines separate the statutes administered by PERC.

♦      Chapter 41.56 RCW is a statute of general jurisdiction for local government employees. It is also dovetailed with separate statutes covering small groups of local government employees:

        ►      Chapter 53.18 RCW is a limited-jurisdiction statute, but port districts are within the "municipal corporations" generally covered by Chapter 41.56 RCW and RCW 53.18.015 expressly dovetails the statutes.

        ►      Chapter 54.04 RCW is a limited-jurisdiction statute, but public utility districts are within the "municipal corporations" generally covered by Chapter 41.56 RCW and a Supreme Court decision expressly dovetails the statutes.

♦      Chapter 41.56 RCW also contains limited jurisdiction sections that cover specific groups of state employees:

        ►      Printing craft employees of the University of Washington (RCW 41.56.022);

        ►      Education providers in state correctional facilities (RCW 41.56.025);

        ►      Independent providers of home care services (RCW 41.56.026);

        ►      Family child care providers (RCW 41.56.___);

        ►      Teaching and research assistants at the University of Washington (RCW 41.56.203); and

        ►      Washington State Patrol troopers (RCW 41.56.473).

♦      Chapter 28B.52 RCW is a limited-jurisdiction statute covering only community college and technical college faculty.

♦      Chapter 41.59 RCW is a limited-jurisdiction statute covering only certificated employees (teachers) employed by common school districts. (School districts are created as "municipal corporations" under Chapter 28A.57 RCW, and their classified employees bargain under Chapter 41.56 RCW).

♦      Chapter 41.76 RCW is a limited-jurisdiction statute, covering only faculty at six institutions of higher education. (The classified employees of those institutions are covered by Chapter 41.80 RCW, and some employees of the University of Washington are covered by Chapter 41.56 RCW).

♦      Chapter 41.80 RCW is a limited-jurisdiction statute in which employee status under the State Civil Service Law, Chapter 41.06 RCW, is a pre-condition to collective bargaining rights. (Several groups of state employees excluded from Chapter 41.06 RCW are thus excluded from all bargaining rights.)

7.29.2 Employees Excluded from PERC Jurisdiction

As noted in Chapter 1 of this Staff Manual, PERC does not have jurisdiction over the entire public sector.

♦      PERC does not assert jurisdiction over the Washington State Ferries system and its employees (who are under the jurisdiction of the Marine Employees' Commission), but Chapter 41.56 RCW does apply to county-owned ferry operations.

♦      PERC can only conduct unit clarification proceedings involving other public entities by consent of all parties under Chapter 49.08 RCW. Examples of such entities are:

        1.     Administrator of the Courts, Office of the

        2.     Alfalfa Seed Commission

        3.     Apple Advertising Commission, Washington State

        4.     Asparagus Commission, Washington State

        5.     Attorney General of Washington (as to Assistant Attorneys General)

        6.     Barley Commission, Washington State

        7.     Beef Commission, Washington State

        8.     Blueberry Commission, Washington State

        9.     Bulb Commission, Washington State

        10.   Code Reviser, Office of the

        11.   Convention and Trade Center, Washington State

        12.   Cranberry Commission, Washington State

        13.   Court of Appeals

        14.   Dairy Products Commission, Washington State

        15.   Department of Printing, Washington State

        16.   Dry Pea and Lentil Commission, Washington State

        17.   Egg Commission, Washington State

        18.   Fairs Commission, Washington State

        19.   Farmed Salmon Commission, Washington State

        20.   Financial Management, Office of

        21.   Fruit Commission, Washington State

        22.   Fryer Commission, Washington State

        23.   Gambling Commission (as to agents excluded from civil service)

        24.   Governor, Office of the

        25.   Hop Commission, Washington State

        26.   Horse Racing Commission, Washington State

        27.   House of Representatives, Washington State

        28.   Investment Board, State (as to investment officers excluded from civil service)

        29.   Joint Legislative Audit and Review Committee

        30.   Legislative Ethics Board

        31.   Legislative Evaluation and Accountability Program

        32.   Legislative Service Center

        33.   Legislative Transportation Committee

        34.   Law Library, State

        35.   Marine Employees' Commission (as to staff excluded from civil service)

        36.   Mint Commission, Washington State

        37.   Military Department (as to officers and enlisted in National Guard)

        38.   Personnel Appeal Board (abolished 7/1/2006)

        39.   Personnel, Department of

        40.   Potato Commission, Washington State

        41.   Puget Sound Gillnet Commission

        42.   Red Raspberry Commission, Washington State

        43.   School Directors Association, Washington State

        44.   Seed Potato Commission, Washington State

        45.   Senate, Washington State

        46.   Statute Law Commission

        47.   Strawberry Commission, Washington State

        48.   Supreme Court of the State of Washington

        49.   Tree Fruit Research Commission, Washington State

        50.   Wine Commission, Washington State

If the employer or employees are in one of those categories, do the parties consent to PERC assistance in this case?

♦      PERC can only conduct unit clarification proceedings involving private entities under Chapter 49.08 RCW by consent of all parties. If dealing with private sector parties, do all of the parties consent to PERC assistance in this case?

7.29.3 Making a Ruling on "Jurisdiction"

The Hearing Officer should reserve any "jurisdiction" issue for the Executive Director. Say:

Your arguments concerning the Commission’s jurisdiction are reserved for a determination by the Executive Director.

If other issues remain in dispute, the Hearing Officer must exercise discretion about whether there is substantial basis for PERC to assert jurisdiction (which would warrant going ahead with the hearing) or substantial basis to question PERC's jurisdiction (which would support adjourning the hearing until a ruling can be made on jurisdiction. Say:

♦   The hearing will go forward on the other issues identified as being in dispute.

          OR,

♦   The hearing will be adourned pending a ruling by the Executive Director.

7.30 TIMELINESS OF THE PETITION

Claims that a petition is "untimely" are the most frequent type of procedural issue raised in unit clarification cases.

7.30.1 "Certification Bar" Claims

The certifications issued by the Commission are final orders under the state APA, and so become "res judicata" unless appealed to court in a timely manner. The parties will have had an opportunity to argue appropriate inclusions and exclusions during the recent representation proceedings under Chapter 391-25 WAC, and a party cannot use a unit clarification proceeding to attack a recent certification.

♦      The "certification bar" concept imbedded in PERC’s representation case rules is not directly applicable to unit clarification proceedings. Expiration of a one-year period after a certification does not create an "open season" for unit clarification petitions.

♦      Unless a party proposing exclusions from certified bargaining units can demonstrate a substantial change of circumstances since the certification was issued, a certification putting position into or out of a bargaining unit will be final and binding on the parties.

        ►      Facts such as the employee being given "supervisor" authority or being assigned "confidential" duties invoking the labor nexus test could be a basis for an exclusion from the certified unit.

        ►      Facts such as that the position was created after the certification was issued and has a community of interest with the certified unit could be a basis for an accretion to the certified unit.

        ►      Facts showing a substantial change of circumstances bringing excluded positions toward the certified unit (such as removal of "supervisor" authority or removal of "confidential" duties invoking the labor nexus test) could be a basis for an accretion to the certified unit.

The exclusions in a certification prevent accretion of pre-existing exclusions, even if the union that organized a fragmentary unit can now demonstrate it has support in one or more excluded loopholes.

The Commission will take administrative notice of its docket records and its prior decisions.

7.30.2 "Contract Bar" Claims

The agreements negotiated by parties under collective bargaining laws are generally binding on the parties for the term of the contract, but parties' agreements on unit determination matters are not binding on the Commission.

♦      The "contract bar" concept imbedded in PERC’s representation case rules is not directly applicable to unit clarification proceedings. The “window” period preceding contract expiration does not create any "open season" for unit clarification petitions.

♦      As to statute-based exclusions and separations (such as “confidential” employees, K-12 certificated employees, and employees eligible for interest arbitration), a unit clarification petition can be filed at any time. See 7.14, above.

♦      As to supervisors, the moving party must have complied with the "Toppenish two-step" to bring the issue before PERC. See 7.14, above.

♦      As to employees working less-than-full-time, the moving party must have complied with the "Toppenish two-step" to bring the issue before PERC. See 7.14, above.

7.31 UNIT DETERMINATION AND ELIGIBILITY PRINCIPLES 

Materials on determination of appropriate bargaining units and eligibility of individuals for inclusion in bargaining units are equally applicable to representation cases covered in Chapter 6 and to unit clarification cases covered in this Chapter 7 of the PERC Staff Manual. Those materials are consolidated in Chapter 8, below.

7.32 FRAMING "PROPRIETY OF BARGAINING UNIT" ISSUES

The starting point for any unit clarification analysis is the existing bargaining unit. Where an issue is framed concerning the propriety of the petitioned-for bargaining unit, the Hearing Officer should proceed as follows:

The existing bargaining unit is described as: (read unit description from petition or as amended in investigation statement) . Mr./Ms. (representative of party attacking propriety of existing unit) , are you questioning the propriety of that bargaining unit configuration? ________

Mr./Ms. (representative of other party) , do you continue to claim the existing configuration is an appropriate unit for collective bargaining? ________

Mr./Ms. (representative of intervenor) , what is your position on the propriety of the existing unit configuration? ________

The Hearing Officer should then take evidence from the parties. The party (parties) questioning the propriety of the existing unit configuration usually go first, followed by the party (parties) that support the existing configuration.

The parties need to present evidence on the "propriety of unit" issue they have framed, so the Executive Director can rule on the matter.

CAUTION: Intervenors can pursue unit modifications by accretions to or exclusions from the bargaining units they already represent, but the Hearing Officer must cut off an intervenor that tries to propose a severance or otherwise raise a question concerning representation.

7.33 FRAMING "ELIGIBILITY" ISSUES

Room for argument often exists about whether a particular individual is properly included or excluded from a bargaining unit under one or more of the broad categories of employees excluded from the coverage of various statutes (such as "managers" or "confidential employees" or "supervisors"), and within workforces where some of the employees work less-than-full-time. These "eligibility" disputes go beyond the "unit determination" process.

7.33.1 General Principles for Processing on "Eligibility" Issues

Where an issue is framed concerning the inclusion or exclusion of particular employees, the Hearing Officer must obtain a record on all disputed positions.

♦      Identify all disputed positions by a specific title or by the name of the incumbent, and try to keep the references consistent throughout the record.

♦      It is not necessary to have testimony from each and every disputed employee, but the Hearing Officer has authority to call disputed employees as witnesses, if the testimony from superiors and/or immediate subordinates does not seem sufficient.

♦      If you detect positions or employees not mentioned by the parties, ask them to explain the exclusion of those employees from consideration in the case.

7.33.2 Making a Record on "Eligibility" Issues

Where one or more "eligibility" issues are framed in the petition or Investigation Statement in the case, the Hearing Officer should proceed as follows:

The file indicates the existence of "eligibility" issue(s) concerning: (read list of disputed positions or classifications) .

Mr./Ms. (representative of petitioner) , what is your position on the disputed individual(s) at this time? ________

Mr./Ms. (representative of employer) , what is your position on the disputed individual(s) at this time? ________

Mr./Ms. (representative of intervenor) , what is your position on the disputed individual(s) at this time? _____ (Repeat as necessary.)

The Hearing Officer must establish the order in which the disputed positions will be taken up, and the order in which the parties will present evidence on the "eligibility" disputes. Considerations include:

♦      The party proposing a "confidential employee" exclusion has a burden of proof under Commission precedent, and so should be required to go first with the presentation of evidence on that subject.

♦      The efficiency of the hearing process is improved if the party with the best knowledge about the disputed individual or position goes first with the presentation of evidence.

♦      Give all parties a full opportunity to present evidence on the eligibility disputes.

7.34 CLOSING ARGUMENTS                         

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

♦      Written arguments (briefs) are encouraged, because they give advocates an opportunity to organize their thoughts away from the heat of battle at the hearing, and will hopefully produce more cogent arguments than might be slapped together at the close of the hearing:

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

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

        ►      Briefs or written arguments in representation cases are normally filed by all parties simultaneously. Sequential briefs or reply briefs can be allowed in unusual circumstances.

        ►      Remind the parties that they are responsible for serving their briefs on one another directly, rather than having them pass through the agency.

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

If written arguments are to be filed, announce the arrangements on-the-record, as follows:

The parties will be filing written arguments in this case. The transcript of this hearing is expected on or about

(date transcript due) . [Adapt the following, as appropriate to your case:] The parties' briefs are due (date or number of weeks/days thereafter).

If a party claims surprise based on something in the brief filed by another party, it must file and serve a request to file a reply brief. The deadline for any such request is seven days after the due date for the parties' briefs. The request must detail the claim of surprise. The Executive Director or I will rule on the request.

A party that wants an extension of the due date for its brief must comply with WAC 391-08-180. You must contact all other parties and obtain their concurrence or opposition before presenting a request to me.

♦      Oral arguments are not encouraged, because they add length and cost to the transcript, and are often disjointed or substantively lacking because the advocates have insufficient time to review the evidence and prepare their argument.

If oral arguments are to be made, invite them on-the-record, as follows:

The parties will be making oral arguments in this case.

Mr./Ms. (representative of complainant) , please make your argument at this time.

Invite arguments from each other party and one round of reply arguments, saying: Mr./Ms. (representative of party) , please make your argument at this time.

7.35   CLOSING THE HEARING            

The Hearing Officer should inquire on-the-record:

Is there anything further before this hearing is closed?

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

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

The hearing is now closed. The record will be complete when (choose, as appropriate): "the last written argument is filed" or "the transcript is issued". The Executive Director has the decision-making authority in this case (add for “eligibility only” situations: "but can delegate that authority to me in this particular type of situation"). The state Administrative Procedure Act calls for issuance of a decision within 90 days after the record is complete. We strive to comply with that timeline, and I will mail written notice to all parties if the decision in this case will be delayed beyond that 90-day period for any reason. Until a decision is formally issued, neither I nor anybody else at the Commission can provide any information about the general outcome or specific content of the decision.

7.36   POST-HEARING PROCEDURES                      

Before leaving the hearing room, the Hearing Officer should:

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

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

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

♦      If two copies of one or more exhibits have not been supplied, it is preferable that the additional copies be supplied before the Hearing Officer leaves the hearing site. If that is impossible, THE COURT REPORTER MUST RETAIN CUSTODY OF THE ONLY COPY OF AN EXHIBIT!

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

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

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

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

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

7.37 "PERCCINS" UPDATE

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

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

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

7.38 COMMUNICATING PROBLEMS

Advise the Executive Director of any unusual circumstances or issues encountered in a unit clarification case hearing.

7.39 EXTENSION OF DEADLINES FOR BRIEFS

Parties often request additional time for filing their briefs. The Hearing Officer should deal with such requests, even where the decision will be signed by the Executive Director:

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

♦      Staff members must insist that parties clear their requests with all other parties to the proceedings, prior to bringing their extension request to the Commission. A "hard nosed" approach is supported by the APA and the Model Rules of Procedure:

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

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

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

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

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

(emphasis added).

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

♦      If a continuance request is opposed, the staff member will need to hold another “pre-hearing conference” (usually by telephone conference call) to take argument and rule on the request. The test is whether "good cause" has been shown by the party requesting the continuance.

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

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

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

7.40 PREPARATION OF DECISION

The Hearing Officer is responsible for preparing a decision on the case. Some tips to ease the task:

♦      Follow the DOCUMENT FORMATTING PROTOCOL issued separately.

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

♦      The name of the petitioner MUST appear in the caption box.

♦      The name of the employer MUST appear in the caption box.

♦      The name of an intervenor NEVER appears in the "caption" box, but must be listed in the "appearances", as follows:

"Richard Roe, Attorney at Law, appeared on behalf of intervenor International Widgetmakers Union of America."

♦      Where two or more unions are involved, consistently use their preferred acronyms (IUOE, IAFF, WSCCCE, etc.) or their local numbers to distinguish them within the decision.

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

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

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

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