On February 12, 1992, United Food and Commercial Workers, Local 381 filed a petition with the Public Employment Relations Commission, seeking investigation of a question concerning representation among certain employees of Forks Community Hospital. A hearing was held on May 4, 1992, before Hearing Officer Kenneth J. Latsch. During the course of the hearing, the parties entered into stipulations with respect to certain classifications previously at issue. In a decision issued on October 9, 1992, the Executive Director ruled that the bargaining unit sought by the union was not appropriate under RCW 41.56.060, by reason of its exclusion of otherwise eligible technical employees of the employer,[1] and the union was given a period of 10 days in which to amend its proposed bargaining unit, or face dismissal of the petition.

By letter dated October 19, 1992, the union requested that its petition be amended to include the previously excluded technical classifications. Further proceedings were then conducted in accordance with Chapter 391-25 WAC. During a pre-hearing conference held on January 12, 1993, the parties agreed that the Commission would conduct an election by mail ballot. On January 15, 1993, the employer supplied the Commission with the list of eligible voters, as agreed upon by the parties during the prehearing conference. On February 16, 1993, ballot materials were mailed to eligible voters. On March 1, 1993, ballots were tallied at the Commission offices in Olympia. An observer from the union was present at the tally. No employer observer was present. The tally showed a conclusive result favoring the union.

The employer's objections were hand-delivered to the Commission's Olympia office late in the afternoon of March 8, 1993. Framed as a letter to the Executive Director from Administrator Eric Jensen  of Forks Community Hospital,[2] the document stated:

Pursuant to WAC 391-25-590, Filing and Service of Objections, I am formally filing an objection to the election on the following basis:

. . .

There was no indication on that letter, however, to show that the employer had served a copy of its objections on the union.

On March 18, 1993, the union notified the Executive Director, by letter, that it had not been served with a copy of the employer's objections. The union requested that the objections be dismissed, because of the employer's failure to comply with the rules.

In a March 26, 1993 letter to the Executive Director, the employer's labor relations consultant disagreed with the union's claim that the employer had failed to comply with the Commission's rules. In that letter, it was stated that the hospital administrator had sent a copy of the employer's objections to the union "on or about March 19, 1993."

POSITIONS OF THE PARTIES

The employer argues that, while WAC 391-25-590 does require that a filing party serve a copy of its objections on other parties to the proceedings, there is no requirement that such copy be served simultaneously or in a time certain. It argues that the Commission should overrule the union's motion for dismissal of the objections.

The union argues that the employer has failed to comply with the rules of the Commission, and that its objections should be dismissed.

DISCUSSION

The filing and service of election objections are governed by WAC 391-25-590, which provides:

Within seven days after the tally has been served under WAC 391-25-550, any party may file objections with the commission. Objections may consist of:

    (1) Designation of specific conduct improperly affecting the results of the election, by violation of these rules, by the use of deceptive campaign practices improperly involving the commission and its processes, by the use of forged documents, or by coercion or intimidation of or threat of reprisal or promise of reward to eligible voters, and/or

    (2) Designation of one or more previous rulings or directions in the matter which the objecting party desires to have reviewed by the commission.

    Objections shall contain, in separate numbered paragraphs, statements of the specific conduct, if any, alleged to have improperly affected the results of the elections and, in separate numbered paragraphs, the specific rulings or directions, if any, which the party filing the objections desires to have reviewed. The original and three copies of the objections shall be filed with the commission at its Olympia office, and the party filing the objections shall serve a copy on each of the other parties to the proceedings. Objections must be timely filed, whether or not challenged ballots are sufficient in number to affect the results of the election.

[Emphasis by bold supplied.]

Inasmuch as these proceedings fall within the coverage of the Administrative Procedures Act, Chapter 34.05 RCW, the parties are also subject to WAC 10-08-110 and WAC 391-08-120, which identically provide:

    (1) All notices, pleadings, and other papers filed with the agency or the presiding officer shall be served upon all counsel and representatives of record and upon parties not represented by counsel or upon their agents designated by them or by law.

    (2) Service shall be made personally or, unless otherwise provided by law, by first class, registered, or certified mail, by telegraph; by electronic telefacsimile transmission and same-day mailing of copies; or by commercial parcel delivery company.

    (3) Service by mail shall be regarded as completed upon deposit in the United States mail properly stamped and addressed. Service by telegraph shall be regarded as completed when deposited with a telegraph company properly addressed and with charges prepaid. Service by electronic telefacsimile transmission shall be regarded as completed upon production by the telefacsimile device of confirmation of transmission. Service by commercial parcel delivery shall be regarded as completed upon delivery to the parcel delivery company with charges prepaid.

    (4) Papers required to be filed with the agency or with the presiding officer shall be deemed filed upon actual receipt during office hours at:

    (a) The Olympia office of the commission for any papers required to be filed with the commission, the executive director, or the agency generally; or

    (b) The office of the presiding officer or the Olympia office of the commission for any papers required to be filed with the presiding officer.

    (5) Where proof of service is required by statute or rule, filing the papers with the presiding officer, together with one of the following shall constitute proof of service:

    (a) An acknowledgement of service.

    (b) A certificate that the person signing the certificate did on the date of the certificate serve the papers upon all parties of record in the proceeding by delivering a copy thereof in person to (names).

    (c) A certificate that the person signing the certificate did on the date of the certificate serve the papers upon all parties of record in the proceeding by:

    (i) Mailing a copy thereof, properly addressed with postage prepaid, to each party to the proceeding or his or her attorney or authorized agent; or

    (ii) Telegraphing a copy thereof, properly addressed with charges prepaid, to each party to the proceeding or to his or her attorney or authorized agent; or

    (iii) Transmitting a copy thereof by electronic telefacsimile device, and on the same day mailing a copy, to each party to the proceeding or his or her attorney or authorized agent; or

    (iv) Depositing a copy thereof, properly addressed with charges prepaid, with a commercial parcel delivery company.

[Emphasis by bold supplied.]

That rule distinguishes "filing" from "service" and gives a party more leeway in effecting "service" (i.e.. that the materials need not be in the hands of the other party by the day it is due in the agency office), but has been interpreted and applied to require that service be effected in a timely manner.

The Commission has previously considered the question of whether an appeal is procedurally defective because of the failure of the party filing the appeal to effect timely service of the documents on other parties to the case. In Mason County, Decision 3108-B (PECB, 1991), we noted that the collective bargaining statutes administered by the Commission embody a legislative policy requiring employers and unions to communicate with one another. RCW 41.56.030(4); RCW 41.56.100; RCW 41.58.040.[3] Those statutes also provide procedures for bringing an orderly resolution to disputes. RCW 41.56.050 through .080; 41.56.160 through .190, 41.58.020. Appeals have been dismissed in a long line of cases when employers or unions have failed to file their documents in accordance with the statutes and rules. Similarly, the appeal was dismissed in Mason County, upon a conclusion that the employer had failed to make service of its appeal on the union contemporaneous with its filing of the document with the Commission.

We recognize that the Commission has the authority to waive its rules when a party is not prejudiced by such action.[4] We have previously determined, however, that the exercise of such discretion should be based upon whether a waiver effectuates the purposes and provisions of the applicable collective bargaining statute. Mason County, supra. Here, the employer repeated the "filing and service" language of the rule in its objections letter, but did not fulfill the "service" requirement. In fact, it appears the employer did not take any steps to serve the objections on the union until after the union had requested dismissal of the objections based on the lack of service. The employer has brought forth no valid reason for its lack of timely service, and it appears that further consideration of the employer's objections will prejudice the union by delaying a certification to which it is otherwise entitled. Were we to follow the employer's logic in this matter, and to require service only at some unspecified point, we would not only overturn years of precedent by this Commission, the National Labor Relations Board, and the courts, but we would also completely undermine the intent of the statute and the rules. Service is required in order that a party may have notice of, and may respond to, claims made in a case in which it has an interest. A waiver of the Commission's rules in this matter would neither further the statutory policies of "communication" and "orderly dispute resolution", nor promote peace in labor relations. We thus decline to exercise our discretion to waive our rules in this matter.

NOW, THEREFORE, it is

ORDERED

1.         The objections filed by the employer in this matter on March 8, 1993 are DISMISSED, due to the failure of the employer to effect timely service of its objections on the union.

2.         The matter is remanded to the Executive Director for issuance of a certification.

Issued at Olympia, Washington, the 14th day of April, 1993.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANET L. GAUNT, Chairperson

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SIGNED]

DUSTIN C. McCREARY, Commissioner