Highline School District, Decision 8659 (PECB, 2004)

In the complaint filed herein on November 19, 2003, Highline Association of School Support Personnel (union), a local of Public School Employees of Washington, alleged that Highline School District (employer) on or about September 1, 2003, transferred certain identified bargaining unit work to employees of another bargaining unit after refusing, on July 17, 2003, a request by the union to bargain the decision to transfer the work.

The union further alleged that in conjunction with its request for bargaining over the decision to transfer bargaining unit work, it requested bargaining upon the impact of such decision upon bargaining unit employees which the union alleged occurred in July 2003. The union asserted in the complaint that a tentative agreement was reached on impacts in July 2003, but the employer refused to sign a document incorporating such agreement.

The preliminary ruling herein found the allegations of refusal to bargain the decision and to execute a document setting forth the terms of an agreement with respect to bargaining upon impacts of the asserted transfer of work, if proven, could establish a violation of RCW 41.56.140(1) and (4).

The hearing in the above-captioned case was held on July 14, 2004. The union filed the subject motions on July 15, 2004, by first class mail. The Examiner denies the motions for reasons set forth hereinafter.

THE UNION’S POSITION

The union seeks to amend its complaint to conform to evidence it asserts was received into evidence without objection by the parties. For purposes of its motions, the union contends the evidence showed significant reductions in staffing levels of bargaining unit employees assigned to the employer’s Title I reading program effectuated for economic reasons only. The union argues the employer refused to negotiate with the union concerning the asserted decision to reduce staffing levels, in violation of RCW 41.56.140(4). The union asserts further that the evidence showed that each school principal, on behalf of the employer, decided for his/her school whether to reduce staffing levels of bargaining unit employees in the Title I reading program. The union contends such site-based decision process violated an alleged duty to appoint a specific bargaining representative to negotiate with the union, in violation of RCW 41.56.140(4).

The union maintains its motion to amend the complaint is timely because the hearing is not closed until receipt of post-hearing briefs. The union, in its conditional motion, argues that, if the Examiner rules the hearing is closed, the hearing should be reopened for the union to submit its motion to amend the complaint on the basis that the evidence, upon which the amendment is predicated, was known to the employer prior to the hearing, introduced by the employer, and the union could not have known of its existence because of prior inconsistent information submitted to the union pursuant to a request for data.

THE EMPLOYER’S POSITION

The employer contends the motion is untimely and must be denied because it was filed after the close of the evidentiary hearing on July 14, 2004, and that the allegations in support of the motion as to evidence received in the hearing are not factual, including the contention that the employer’s changes in administration of Title I were motivated solely by economic concerns or that staffing levels were in fact reduced for bargaining unit members involved in Title I. The employer further contends it would be prejudiced if the hearing were to be reopened where there are no facts showing the union has either new evidence to present which it could not have presented at the hearing had it utilized reasonable efforts, or evidence to present which it could not have known of because of factual misrepresentations by the employer.

RELEVANT COMMISSION RULES

WAC 391‑45‑070 (2) reads in relevant part:

Motions to amend complaints shall be subject to the following limitations:

…

(c) After the opening of an evidentiary hearing, amend­ment may only be allowed to conform the pleadings to evidence received without objection, upon motion made prior to the close of the evidentiary hearing.

Also in relevant part, WAC 391‑45‑270 reads as follows:

HEARINGS -- REOPENING OF HEARING.

(2) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.

DISCUSSION

No citation of authority is required to support the proposition that the evidentiary hearing in this case closed upon the Exam­iner’s statement to that effect on July 14, 2004, after both parties rested their cases and failed to respond affirmatively to the question posed to them as to whether there was anything further for the hearing. The only proper time to entertain a motion to amend the complaint to conform to the evidence is prior to the close of the hearing under the express provisions of WAC 391-45-070(2) (c). The union manifestly failed to comply with this requirement.

The union has also failed to establish a basis for reopening the hearing. In support of its motions, the union unequivocally states the sole purpose for reopening the hearing is for it to have an opportunity to make a motion to conform its complaint to the evidence adduced at the hearing. A hearing may be reopened only to admit newly discovered evidence which could not have been discov­ered and presented at the hearing with the exercise of reasonable diligence. In this case, the union is attempting to reopen the hearing for the sole purpose of rectifying its failure to make a motion to conform its complaint to the evidence in a timely fashion, i.e., prior to the close of the hearing.

NOW, THEREFORE, it is

ORDERED

The motion to amend complaint and conditional motion to reopen the hearing are both DENIED.

Issued at Olympia, Washington, this 22^nd day of July, 2004.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

VINCENT M. HELM, Examiner