Representation ("E") Cases

Unit Clarification ("C") Cases

Normal Case Processing Steps

REPRESENTATION ("E") CASES

See Chapter 391-25 WAC. Representation cases involve the creation and/or termination of collective bargaining relationships. The "normal" flow is:

1. Petition for Investigation of Question Concerning Representation (PERC Form E-1 or equivalent) is filed at PERC's Olympia office, together with at least a 30% showing of interest.
2. The PERC Representation (QCR) Coordinator sends the employer notices for posting and a request for a list of the employees involved.
3. Employer posts notices, and sends a list of employees to PERC.
4. PERC verifies the sufficiency of petitioner's showing of interest.
   • PERC notifies the petitioner of any correctable defect, and sets deadline for curing the defect. If a correctable defect is not cured in a timely manner, PERC will dismiss the petition.
   • If a defect is not correctable, PERC will dismiss the petition.
5. Other unions have the right to move for intervention in the proceedings.
   • An incumbent exclusive bargaining representative can intervene by showing it has represented any or all of the employees involved within the preceding year.
   • Other unions must supply at least a 10% showing of interest.
6. The QCR Coordinator establishes the date and time for an Investigation Conference, which is usually conducted by telephone conference call, and supplies a set of questions that will be covered.
7. The QCR Coordinator conducts the Investigation Conference and issues an Investigation Statement stating the stipulations made and disputed issues of fact identified in the conference.
   • If all pre-conditions to an election or cross-check are met, skip to Step 11 or Step 12, below.
   • Summary judgment may be used, if no disputed issues of fact are identified.
   • Issues concerning the eligibility of particular individuals for inclusion in the bargaining unit are often reserved for determination after an election or cross-check is conducted.
8. A Hearing Officer is assigned in cases where disputed issues of fact are identified.
   • A notice is issued, setting a date, time and place for a formal hearing.
   • The Hearing Officer presides at the hearing. The parties present evidence through witnesses and exhibits. A court reporter makes a transcript of the hearing, and parties can buy copies.
   • The parties may request, or the Hearing Officer may direct, the filing of briefs.
9. PERC's Executive Director issues a written decision, with a "90 days after last brief is filed" target time.
   • Rulings are made on any claimed procedural defects in the case.
   • Rulings are made on whether the employees constitute an appropriate bargaining unit under the applicable statute (some statutes impose the unit configuration).
   • Rulings are made on the eligibility of individuals or groups for inclusion in the bargaining unit.
   • Rulings are made on whether to hold an election or cross-check, or to dismiss the petition.
10. Parties have 20 days to appeal an "Order of Dismissal" to the Commission. Parties can only appeal a "Direction of Election" or "Direction of Cross-Check" on jurisdictional grounds. All other appeals must wait until after the election or cross-check.
11. PERC can conduct a cross-check if there is only one union involved in a case under Chapter 41.56 RCW or Chapter 49.08 RCW, and either: (a) the parties agree to use the cross-check method; or (b) the petitioner's showing of interest is greater than 70%. PERC issues a tally of the cross-check.
12. PERC conducts an election (and run-off election, if necessary).
    • Parties have the right to challenge the ballots of persons they claim are not eligible for inclusion in the bargaining unit, and those ballots will be set aside for a ruling later.
    • If challenged ballots are sufficient in number to affect the outcome of the election, a hearing will be held and a decision will be issued on those eligibility disputes.
    • PERC will issue a tally of the election result to the parties.
13. The parties have 7 days to file objections, once a conclusive tally is issued.
    • Objections can "appeal" rulings made by the Hearing Officer or Executive Director.
    • Objections can allege errors in the election or cross-check procedure.
    • Objections can allege misconduct by a party which improperly affected the outcome.
    • The parties have a right to file briefs in support of or in opposition to objections.
14. If objections raise disputed issues of fact, a Hearing Officer is assigned.
    • A notice is issued, setting a date, time and place for a formal hearing.
    • The Hearing Officer presides at the hearing. The parties present evidence through witnesses and exhibits. A court reporter makes a transcript of the hearing, and parties can buy copies.
    • The parties may request, or the Hearing Officer may direct, the filing of briefs.
15. The Commission decides any appeals (from Step 9) or objections (from Step 13 and Step 14).
16. If no objections are filed, the Executive Director issues a certification.
    • If eligibility issues were reserved at Step 7, Step 8 or Step 9, an interim certification is issued.
    • If no eligibility issues remain, the certification is the final order in the case.
17. A Hearing Officer is assigned to process any eligibility issues reserved at Step 7, Step 8 or Step 9.
    • A notice is issued, setting a date, time and place for a formal hearing.
    • The Hearing Officer presides at the hearing. The parties present evidence through witnesses and exhibits. A court reporter makes a transcript of the hearing, and parties can buy copies.
    • The parties may request, or the Hearing Officer may direct, the filing of briefs.
18. The Executive Director (or the Hearing Officer under delegated authority) issues a written decision on the reserved eligibility issues, with a "90 days after last brief is filed" target time.
19. Parties have 20 days to appeal a decision on reserved eligibility issues to the Commission. The parties have the right to file briefs on appeals. The Commission decides appeals.
20. Parties have the right to appeal a final Commission decision to court under the Administrative Procedure Act, Chapter 34.05 RCW. Appeals must be filed within 30 days after the decision is issued.
21. A "certification bar" is in effect for one year following issuance of a PERC certification. A petition filed in that period for the same unit or a smaller unit will be dismissed as untimely.

UNIT CLARIFICATION ("C") CASES

See Chapter 391-35 WAC. Unit clarification cases involve modifications of bargaining units, based on changed circumstances. The "normal" flow is:

1. Petition for Clarification of Bargaining Unit (PERC Form C-1 or equivalent) is filed at PERC's Olympia office.
   • Only the employer and an incumbent exclusive bargaining representative can process a unit clarification petition.
   • Other unions can intervene only if they claim to represent another existing bargaining unit which should properly include the disputed employee(s).
   • Individual employees cannot be or become parties to unit clarification cases.
2. Unit determination is not a mandatory subject of bargaining, but parties must communicate with one another.
   • Employers and unions seeking to change the bargaining unit status of position(s) or classification(s) must discuss the matter with the opposite party before bringing the case to PERC.
   • Employers and unions are not permitted to circumvent existing collective bargaining agreements which include or exclude the disputed positions.
3. PERC's Executive Director or designee reviews the petition, and a Deficiency Notice is sent to the parties where procedural defects are evident.
4. A Hearing Officer is assigned in cases where disputed issues of fact are identified.
   • A notice is issued, setting a date, time and place for a formal hearing.
   • The Hearing Officer presides at the hearing. The parties present evidence through witnesses and exhibits. A court reporter makes a transcript of the hearing, and parties can buy copies.
   • The parties may request, or the Hearing Officer may direct, the filing of briefs.
5. The Executive Director issues a written decision, with a "90 days after last brief is filed" target time.
   • Rulings are made on any claimed procedural defects in the case.
   • Rulings are made on the propriety of the existing bargaining unit under the applicable statute (some statutes impose the unit configuration), and on whether there is a community of interest between the disputed employee(s) and the existing bargaining unit.
   • Rulings are made on the eligibility of individuals or groups for inclusion in the bargaining unit (the Executive Director can delegate this decision-making authority to the Hearing Officer).
6. Parties have 20 days to appeal a decision issued by the Executive Director or Hearing Officer to the Commission. A decision by the Executive Director or Hearing Officer is final, unless appealed.
7. The parties have a right to file briefs in support of or in opposition to appeals.
8. The Commission issues a written decision on the issues raised by an appeal.
9. The parties have the right to appeal a final Commission decision to court under the Administrative Procedure Act, Chapter 34.05 RCW. Appeals must be filed within 30 days after the decision is issued.