DECISIONS

Kitsap County, Decision 6425 (PECB, 1998)

Kathy Coon, Representative, appeared on behalf of the petitioner.

Jacqueline Aufderheide, Deputy Prosecuting Attorney, appeared on behalf of the employer.

John Cole, Representative, appeared on behalf of the intervener, Washington State Council of County and City Employees.

On June 26, 1998, the Kitsap County Supervisors Collective Bargaining Group filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission under Chapter 391-25 WAC, seeking certification as exclusive bargaining representative of certain employees of Kitsap County. The petition did not describe the petitioned-for bargaining unit and did not list any incumbent exclusive bargaining representative, but was accompanied by a copy of a collective bargaining agreement between Kitsap County and the Washington State Council of County and City Employees (WSCCCE), Local 1308. That contract covers both non-supervisory and supervisory classifications at Kitsap County, and indicates it is to remain in effect through December 31, 1999.

An investigation conference was conducted on August 17, 1998, by telephone conference call. The WSCCCE asserted that the petitioner failed to serve it with a copy of the petition, as required by the Commission’s rules. The petitioner did not respond at that time.

On September 2, 1998, the Executive Director sent a letter to the parties, directing the petitioner to show proof of service on the other parties, as required by WAC 391-25-050 and WAC 391-08-120. The first of those rules includes:

The party filing the petition shall serve a copy on the employer and on each employee organization named in the petition as having interest in the proceedings, …

The latter rule includes:

Service on Other Parties

(3)           A party which files or submits any papers to the agency shall serve a copy of the papers upon all counsel and representatives of record, and upon all parties not represented by counsel or upon their agents designated by them or by law. Service shall be completed no later than the day of filing or submission under subsection (1) or (2) of this section, by one of the following methods:

(a)           Service may be made personally, and shall be regarded as completed when delivered in the manner provided in RCW 4.28.080;

(b)           Service may be made by first class, registered, or certified mail, and shall be regarded as completed upon deposit in the United States mail properly stamped and addressed.

(c)           Service may be made by telegraph or by commercial parcel delivery company, and shall be regarded as completed when deposited with a telegraph company or parcel delivery company properly addressed and with charges prepaid.

(d)           Service may be made by electronic telefacsimile transmission, and shall be regarded as completed upon production by the telefacsimile device of confirmation of transmission, together with same day mailing of a copy of the papers, postage prepaid and properly addressed, to the person being served.

[Emphasis by bold supplied.]

Where the sufficiency of service is questioned by a party entitled to service, the focus shifts to WAC 391-08-120(4) and (5), which provide:

Proof of Service

(4)           On the same day that service of any papers is completed under subsection (3) of this section, the person who completed the service shall:

(a)           Obtain an acknowledgment of service from the person who accepted personal service; or

(b)           Make a certificate stating that the person signing the certificate personally served the papers by delivering a copy at a date, time and place specified in the certificate to a person named in the certificate; or

(c)           Make a certificate stating that the person signing the certificate completed service of the papers by:

(i) Mailing a copy under subsection (3) (b) of this section; or

(ii) Depositing a copy under subsection (3) (c) of this section with a telegraph or parcel delivery company named in the certificate; or

(iii) Transmitting and mailing a copy under subsection (3)(d) of this section.

(5) Where the sufficiency of service is contested, an acknowledgment of service obtained under subsection (4) (a) of this section or a certificate of service made under subsection (4) (b) or (c) of this section shall constitute proof of service.

The petitioner was given a period of 14 days in which to file and serve proof that the original petition was served on the WSCCCE, or face dismissal of its petition.

The petitioner filed a response to the show cause directive on September 16, 1998, but it did not assert that it effected service on the WSCCCE. Instead, it apparently seeks to be excused from the “service” requirement on a basis that the WSCCCE had not yet moved for intervention under WAC 391-25-170.

Contemporaneous Service Required

The petitioner acknowledges that the WSCCCE was, at least recently, the incumbent exclusive bargaining representative of at least some of the petitioned-for employees. It acknowledges that the WSCCCE held that status until a “memorandum of understanding” was signed which modified the historical bargaining unit and/or added some new classifications to that bargaining unit. As such, the WSCCCE was clearly an organization that was known to the petitioner has having an interest in this bargaining unit.

The petitioner used the petition form promulgated by the agency, and made hand-written entries on the face of that form. The instructions printed on the back side of the petition form filed in this case include:

If other organization(s) are known to exist which claim (or may claim) to represent employees in the bargaining unit involved, attach additional sheets containing all the name/address/telephone information you have on the organization (s) and its/their principal representative(s).

[Emphasis by bold supplied.]

While the petitioner did not list the WSCCCE on the petition form or on a separate sheet of paper, the only logical explanation for the petitioner having filed a copy of the collective bargaining agreement with its petition is that the petitioner knew that the WSCCCE claimed to represent employees in the bargaining unit involved.

The WSCCCE was entitled to notice of the proceedings, and to be served with a copy of the petition, regardless of whether it could or would move for intervention as incumbent exclusive bargaining representative. The object of the “service” requirement is to bring out all potential parties for a proceeding that will establish future bargaining relationships. The fact that the WSCCCE might obtain a copy of a document by means of a public records request to the Commission or from some other source does not equate with the service required by the rules.

The obligation to make a contemporaneous record of service is a small imposition on parties implementing the service requirements under the Administrative Procedure Act and the Commission’s rules, and avoids the need for hearings and decisions on “substantial compliance” issues. Since the petitioner has not provided proof of service in this case, and impliedly admits that it did not serve a copy of its petition on the WSCCCE, the petition must be dismissed.

NOW THEREFORE, it is

ORDERED

The petition for investigation of a question concerning representation filed in the above-entitled matter shall be, and hereby is, DISMISSED for failure of the petitioner to supply proof of service of the petition on an organization named in the collective bargaining agreement filed with the petition.

Issued at Olympia, Washington, this 21st day of September, 1998.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order will be the final order of the agency unless a notice of appealed is filed with the Commission under WAC 391-25-390(4) and 391-25-660.