Valley Communications Center, Decision 6097-A (PECB, 1998)

Cline and Emmal, by Alex J. Skalbania, Attorney at Law, appeared on behalf of the union.

Garvey, Schubert and Barer, by Ronald J. Knox, Attorney at Law, appeared on behalf of the employer.

Examiner Walter M. Stuteville held a hearing in the above-captioned matter and found no violation of Chapter 41.56 RCW. His findings of fact, conclusions of law and order of dismissal were issued on October 31, 1997, as Decision 6097-PECB. The deadline for filing a petition for review in this case was thus November 20, 1997.[1]

The Valley Communications Employees Association (union) filed a petition for review on November 21, 1997. In a letter covering transmittal of the petition for review, the union requested an extension of time for its brief in support of its petition for review.[2] Counsel indicated that a voice mail message had been left for opposing counsel, and no reply had been received.

On December 22, 1997, the union moved for a waiver of the time to file the petition for review under WAC 391-08-003, based on claims that: (1) The courier who was to deliver the petition for review arrived at the Commission’s office 10 minutes after the close of business on November 20, 1997, and (2) the employer was not prejudiced by the late filing. Attached to that motion were:

•           An affidavit of a legal assistant, stating that she arranged for a courier to pick up “the amended complaint and statement of facts” from the attorney’s office on November 20, 1997.[3]

•           A “special messenger slip” containing handwritten notes, “Delivered Nov 20 after 5:00 closing”, and “J.S. 5:10 pm”. The slip was dated “11/20/97”, but bore a Commission date stamp of November 21, 1997.

•           A “Declaration of P.M. Legal Courier Services, L.L.C.”, stating that “Through an error by P.M. Legal Courier Services these documents were not delivered until November 21, 1997.”

•           Another copy of the “special messenger slip” described above, again showing the Commission date stamp of November 21, 1997.

The employer has responded twice with opposition to extensions requested by the union. In a letter filed on December 5, 1997, counsel for the employer asserted, “We did not receive any message, voice mail or otherwise, from the Association’s attorneys regarding the filing of the appeal brief until late afternoon on the same day the petition and brief were due”, and “The Association has not shown good cause for its untimely brief filing”. In a motion filed on January 22, 1998, the employer urges that the petition for review should be dismissed as untimely, and that the brief filed by the union be stricken.

DISCUSSION

Under WAC 391-08-003, the Commission has reserved the authority to waive the application of its rules. The exercise of that authority has historically been conditioned on such a waiver effectuating the purposes and provisions of the applicable collective bargaining statute. While “lack of prejudice” is the only condition explicitly stated in WAC 391-08-003, the rule does not make waivers automatic when there is no prejudice.

The Commission has been strict in its enforcement of the time limits for filing election objections and petitions for review, and has dismissed untimely appeals in numerous cases. See, for example, Puget Sound Educational Service District, Decision 5126-A (PECB, 1996), and cases cited therein; City of Tacoma, Decision 5634-B (PECB, 1996) and cases cited therein; and King County, Decision 5720-A (PECB, 1997).

Inadvertent errors have been found insufficient justification for waivers in several past cases. Spokane School District, Decision 5647-B (PECB, 1996); City of Puyallup, Decision 5460-A (PECB, 1996); and Mason County, Decision 3108-B (PECB, 1991). Responding to an acknowledgment of attorney error, the Commission stated:

[T]he only “cause” of the employer’s untimely service was its own lack of due diligence. If the Commission were to excuse untimely service for such a reason, we would completely undermine the service requirements of WAC 391-45-350 and the underlying policy of orderly dispute resolution.

Mason County, supra.

The Supreme Court of the State of Washington has similarly required strict compliance with time limits in a case arising out of Chapter 41.56 RCW. See, City of Seattle v. PERC, 116 Wn.2d 923 (1991).

The only instances found where the Commission has waived the time limit for appeal (i.e., election objections or a petition for review) have been where the agency’s staff or rules contributed to the late filing. In City of Tukwila, Decision 2434-A (PECB, 1987), the party filing untimely objections had relied upon erroneous advice from a member of the agency staff. In Island County, Decision 5147-C (PECB, 1996), where the party transmitted its petition for review to the Commission by telefacsimile within the 20-day period and filed its original later, a Commission majority waived the time for the filing based on a conclusion that the then-existing rule concerning the unacceptability of filing by “fax” was not clear. There is no claim or evidence of an agency error or an ambiguous agency rule in the case now before us, so that these precedents are inapplicable here.

We infer from the union’s letter transmitting the petition for review that the “workload and house closing” reasons given by the union for its request for extension of time to file its brief also apply to the late petition for review. The evidence is unclear as to whether the courier actually made it to the Commission office after 5:00 p.m. on November 20^th or on November 21^st. Even if the courier service takes the blame for the failure to deliver the document on time, the ultimate responsibility for the untimely filing lies with the union’s attorney. By waiting until the afternoon of November 20^th to provide the documents to the courier service, there was a risk that the petition for review would not be delivered on time.

WAC 391-45-350 clearly sets forth the 20-day time period for filing a petition for review. Delivering a document 10 minutes after the close of business or the following day was not substantial compliance with the purpose of the 20-day filing requirement. Consistency in the application of our rules fulfills the charge of the Legislature that the Commission be “uniform” in its administration of public sector collective bargaining. RCW 41.58.005(1). This petition for review must be dismissed.

NOW, THEREFORE, it is

ORDERED

The petition for review is DISMISSED, and the decision entered on October 31, 1997 stands as the final order in this matter.

Issued at Olympia, Washington, the 6th day of February, 1998.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN SLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSHPH W. DUFFY, Commissioner