DECISIONS

Cowlitz County, Decision 12115 (PECB, 2014)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the matter of the petition of:   LE RECORDS ASSOCIATION   Involving certain employees of:   COWLITZ COUNTY

CASE 26007-E-13-3824   DECISION 12115 - PECB     ORDER OF DISMISSAL

 

 

Darryl Garrettson, Attorney at Law, for the LE Records Association.

 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Howard Rubin, Attorney at Law, for the employer.

 

           

The Records Specialists and Dispatchers at Cowlitz County (employer) are in a large bargaining unit represented by the Cowlitz County Emergency Services Association (CCESA).  The CCESA was certified as the exclusive bargaining representative of the bargaining unit in 1997.  Cowlitz County, Decision 5915 (PECB, 1997).  The bargaining unit has been the subject of two unsuccessful severance attempts.  The first coming before the current certification when the bargaining unit was represented by another union and the second coming just after the current certification. 

 

The LE Records Association (Association) has filed a severance petition seeking to sever the Records Specialists from the bargaining unit.  The question to be answered in this case is whether there has been a change in circumstances which alters the community of interest and warrants severance.  Severance is again inappropriate in this case.  There has not been an alteration to the community of interest of the current bargaining unit. 

 

 

BACKGROUND

 

The CCESA represents a bargaining unit of Records Specialists and Dispatchers at Cowlitz County.  The bargaining unit originally certified by this agency was described as follows:

 

All regularly scheduled full-time employees of the Cowlitz County Technical Services Center doing the work of dispatcher, records clerk, EMS planner, and office assistant, excluding supervisors, confidential employees, trainees, temporary employees, and all other employees.

 

 

Cowlitz County, Decision 5915 (PECB, 1997).[1]  In 1998 or 1999, the CCESA and the employer agreed to remove the employees in the EMS Planner and Office Assistant job classes from the bargaining unit without seeking clarification from this agency.

 

Since the time of the original certification, the parties have negotiated six collective bargaining agreements.  The parties have also participated in mid-term bargaining, letters of agreement, grievance disputes, and discussed issues regarding working conditions of the bargaining unit employees, including the petitioned-for employees. 

 

On October 14, 2013, the Association filed a petition seeking to sever the Records Specialists from the bargaining unit and to be certified as the exclusive bargaining representative of those employees.  On October 17, 2013, the employer filed a motion requesting dismissal of the Association’s petition.  Ruling on the motion was delayed until after the Investigation Conference.  

 

During the November 14, 2013 Investigation Conference, the employer reasserted its challenge to the appropriateness of the petitioned-for unit.  The employer claimed the employees in the existing bargaining unit are highly integrated.  The employer also pointed to the previous attempts to sever employees from the larger existing bargaining unit which had been denied.  Cowlitz County, Decision 4960 (PECB, 1995) and Cowlitz County, Decision 6204 (PECB, 1998).  In response, the Association asserted that it would be able to distinguish the current factual situation from the ones that existed in the previous severance attempts.  The Association also claimed that it could demonstrate that the Records Specialists no longer share a community of interest with the Dispatchers and other employees in the existing bargaining unit.  On December 5, 2013, CCESA President Todd White filed a statement indicating that the CCESA did not oppose the petition to sever the Records Specialists from the current bargaining unit. 

 

Because the parties disagreed about the appropriateness of the petitioned-for bargaining unit, the matter was set for hearing.  Hearing Officer Page Garcia conducted a hearing on February 21, 2014, and received testimony and evidence regarding the appropriateness of the Association’s petition.  At the outset of the hearing, the County again renewed its motion to dismiss the Association’s petition.  Based on the January 9, 2014 Investigation Statement and the Association’s assurances that it would provide distinguishing factual evidence from the previous decisions, the Hearing Officer denied the motion and invited the County to argue its position in its post-hearing brief.

 

DISCUSSION

 

Applicable Legal Standards

This agency has the authority to determine appropriate bargaining units for the purposes of collective bargaining.  RCW 41.56.060.  When determining new units or modifying existing units, this agency considers “the duties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees.”  RCW 41.56.060(1).  The purpose of this examination is to discern whether a sufficient community of interest exists among employees to enable them to bargain effectively with their employer.  Quincy School District, Decision 3962-A (PECB, 1993), aff’d, 77 Wn. App. 741 (1995), review denied, 127 Wn.2d 1019 (1995).

 

All statutory factors are to be considered in each case, but no one factor dominates the others.  See Washington State University, Decision 9613-A (PSRA, 2007).  When confronted with an inappropriate bargaining unit that cannot be rehabilitated by a minor adjustment, any petition associated with that unit must be dismissed.  City of Marysville, Decision 4854 (PECB, 1994).

 

Severance Petitions

A labor organization may attempt to represent a portion of an existing bargaining unit represented by a different organization by “severing” that bargaining unit into two parts.  To attempt a severance, the petitioning labor organization must have the support of at least 30% of the employees that would be included in the “severed” bargaining unit.  The petitioning labor organization may also be asked to show an offer of proof asserting that there have been changes to the community of interest of the employees that would warrant a severance.  This is particularly true for bargaining units that were previously certified by this agency as being appropriate. 

 

Severance petitions are approached differently than petitions to organize new bargaining units.  When a labor organization files a petition to represent a proposed bargaining unit of employees, the unit determination does not require certification of the most appropriate unit.  Rather, the question is whether the proposed unit is appropriate.  The fact that other groupings of employees may also be appropriate, or even more appropriate, does not render the proposed configuration inappropriate.  City of Winslow, Decision 3520-A (PECB, 1990).  When confronted with an inappropriate bargaining unit that cannot be rehabilitated by a minor adjustment, any petition associated with that unit must be dismissed.  City of Marysville, Decision 4854 (PECB, 1994).

 

In the case of a severance petition, the existing bargaining unit is initially presumed to be appropriate.  The petitioner bears a significant burden of overcoming that presumption and demonstrating that the employees in the existing bargaining unit no longer share a community of interest.  This is particularly true when the incumbent union and employer have established a long bargaining relationship.  Western Washington University, Decision 9903-B (PSRA, 2008), citing Vancouver School District, Decision 4022-A (PECB, 1993).  It is not enough for the petitioner to demonstrate that each proposed bargaining unit would be an appropriate bargaining unit; rather, a petitioner must show that the existing bargaining unit is no longer appropriate under the statute. 

 

Because severance hinges on whether the existing bargaining unit is appropriate, the primary inquiry is whether there has been a change to community of interest of the existing bargaining unit that warrants a revision to its composition.  To aid in this inquiry, this agency has applied a six-part test set forth in Yelm School District, Decision 704-A (PECB, 1980).  See also King County, Decision 11441-A (PECB, 2013).  That test was based upon the National Labor Relations Board decision in Mallinckrodt Chemical Works, 162 NLRB 387 (1966), and examines six factors.^[2]   The factors to be considered included: 1) whether the employees constitute a functionally distinct department, working in trades or occupations for which a tradition of separate representation exists; 2) the history of bargaining of the employees; 3) the extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit; 4) the factual and legal precedents of established unit determination patterns in the industry; 5) whether the employer’s operation is integrated, and 6) whether the petitioning labor organization is qualified to represent the employees.  Inherent in the factors of the test are whether the employees continue to share a community of interest. 

 

The first factor of the Yelm School District test originally examined whether the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft whether the work in a trade for which a tradition of separate representation exists.  Recent agency decisions have focused on the second clause, which examines whether the employees constitute a functionally distinct department for which a separate history of representation exists.  Recent decisions have also examined whether the employees continue to share common duties, skills, and working conditions.  See, e.g., Spokane County, Decision 7866 (PECB, 2002) (examining the duties, skills, and working conditions to determine whether the employees constitute a distinct group of employees). 

 

While the original Yelm School District and Mallinckrodt tests primarily examined whether the petitioned-for employees are part of a distinct skilled trade, the current inquiry for public employees who collectively bargain within the State of Washington has evolved into an examination of whether the petitioned-for employees share a distinct community of interest within an identifiable work group that enjoys a tradition of separate representation.  King County, Decision 11441. 

 

The second factor of Yelm School District examines the history of bargaining between the employees in the bargaining unit and their employer.  This factor is only binding where the bargaining unit has been certified by this agency.  See King County, Decision 11441, aff’d, Decision 11441-A. 

 

The third factor of Yelm School District examines whether the employees have maintained a separate identity within the bargaining unit.  This factor examines whether the petitioned-for employees bargained with the employer separately from the other employees.  This factor also examines the duties, skills, and working conditions of the employees in the bargaining unit.  Vancouver School District, Decision 4022-A. 

 

The fourth factor, history of pattern of bargaining within the industry, has limited application in severance cases in the public sector.  This factor, which is drawn from the private sector, typically looks at whether the employees are in “skilled crafts” or “trades” such as carpenters, plumbers, and electricians.  In the private sector, these types of employees have long traditions of separate organization representation.  Spokane County, Decision 7866 (PECB, 2002).  These types of craft employees traditionally attain “journeyman” status after several years of formal apprenticeship training under the oversight of an apprenticeship council while working under the close supervision of skilled craft persons.  Id.  Public sector bargaining units are generally not organized on such lines, as the statute only requires that the employees share a community of interest.   

 

The fifth factor, whether the employees in the existing bargaining unit are integrated, essentially examines whether the employees in the existing bargaining perform duties that are mutually dependent upon one another and therefore demonstrating a community of interest.  This factor considers both the duties, skills, and working conditions of the employees, as well as the extent of organization within the workforce.  Vancouver School District, Decision 4022.   

 

The sixth factor of the test is no longer relevant for public employees in Washington State.  The Commission should not interfere with the choice of bargaining representative by public employees once an appropriate unit is found to exist.  Vancouver School District, Decision 4022, citing International Association of Fire Fighters, Local 1052 v. PERC, 45 Wn. App. 686 (1986).

 

The factors of the Yelm School District test are not an exclusive list of the considerations involved in making unit determinations in severance situations.  Other factors worthy of consideration may appear during the course of litigation.  City of Lynnwood, Decision 10668 (PECB, 2010). 

 

Application of the Yelm School District Standards

Applying the Yelm School District test to the facts of this case demonstrates that there has been no alteration to the community of interest of the existing bargaining unit.  

 

Whether the employees continue to share common duties, skills, and working condition?

The Records Specialists do not share a distinct community of interest within an identifiable work group that enjoys a tradition of separate representation.  Rather, the community of interest shared between the Records Specialists and Dispatchers continues to exist.  In this case, both the Dispatchers and the Records Specialists assist local law enforcement, other agencies, and the public with public safety concerns.  Both positions share education and pre-employment qualifications, work in the same building, and enjoy the same benefits.

 

The Records Specialists maintain law enforcement records, assist and answer inquiries from local law enforcement personnel and other agencies, and assist in answering inquiries from the public.  The Records Specialists also handle phone calls, enter data into the automated law enforcement records systems, validate and verify that information, and maintain misdemeanor and felony warrant files and protection orders from the courts.  The Dispatchers receive and relay emergency and non-emergency requests for police, fire, and medical services, utilize radio, telephone, and computer equipment, and perform general clerical tasks to ensure accurate complaint records and reporting requirements.

 

While not dispositive, the record reflects that the duties and working conditions of the petitioned-for employees are essentially the same as they were nearly twenty years ago.  With the exception of a new computer system and CCESA and Cowlitz County’s mutual agreement to remove the emergency department employees from the bargaining unit, there have been no substantial changes in the duties or working conditions of the Records Specialists.  See Cowlitz County, Decision 4960 (petition denied to sever Emergency Management employees from the certified bargaining unit).

 

Both the Records Specialists and Dispatchers have the same health plan, accrue the same vacation and sick leave, receive bonus pay on their anniversary date, and receive floating holidays and bereavement leave.  They work in the same building, work 40 hours per week, and both regularly interact with the public and law enforcement.  Both positions require a high school diploma or equivalent, and candidates for both positions must pass a typing test, criminal history and background checks. 

 

Both positions share similar purposes, goals, and objectives, work in the same building, have nearly identical educational requirements and pre-employment requirements.  Their duties are also integrated in that dispatch employees rely on the Records Specialists in order to fulfill their dispatch responsibilities.  Dispatchers have full access to the department’s Computer Aided Dispatch (CAD) map system.  Records Specialists have limited access to CAD through a program called Netviewer.  Deanna Wells, Director of Cowlitz County 911, testified that the Dispatchers “absolutely” need the Records Specialists to perform their jobs and described the Records Specialists as “our support staff.” 

 

Although some differences exist between the Dispatchers and Records Specialists, those differences do not disrupt the existing community of interest.  They have different wage, vacation usage, training, and hours of work provisions.  However, these differences were due to negotiations between the CCESA and employer, and not through a unilateral action of the employer.  While both positions work in the same building, the Records Specialists work on the first floor and the Dispatchers work in the basement.  For the most part, promotions are available to each group of employees vertically within each department, but not from one unit to another.  However, there have been exceptions to the vertical department promotion standard, and at least two Records Specialists who had a prior dispatch experience and were “promoted” to the 911 Dispatch Department. 

 

The petitioned-for employees also do not work in a field that enjoys a tradition of separate representation.  The Association points to three agency decisions, City of Kelso, Decision 11672 (PECB, 2013); City of Bellevue, Decision 9608 (PECB, 2007); and Clark County, Decision 5960 (PECB, 1997), that it asserts allow for distinct bargaining units of employees who perform Records Specialist work.  None of these decisions stand for the proposition that employees performing Records Specialist duties must be included in separate bargaining units.

 

In City of Kelso, the bargaining unit was voluntarily recognized by the employer, and that recognition holds no precedential weight for instant factual situation.  City of Richland, Decision 279-A (PECB, 1978), aff’d, IAFF Local 1052 v. Public Employment Relations Commission, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981). In City of Bellevue and Clark County, the bargaining units certified by this agency were comprised of all non-commissioned employees of the respective police and sheriff’s departments, not just employees performing record specialist work. 

 

Reviewing both analytical steps in this factor and based on the totality of the evidence, the Association did not overcome the heavy burden to prove that the petitioned-for positions maintain a distinct community of interest or work in a field that enjoys a tradition of separate representation. 

 

What is the history of bargaining for the employees in the bargaining unit?

The history of bargaining does not support severance of the petitioned-for employees in this case.  The history of bargaining issue in a severance case requires consideration of the length of the bargaining relationship, evaluation of the potential disruption of bargaining stability if the historical unit is disturbed, and concern about fragmentation of bargaining units.  King County, Decision 11441-A, citing Vancouver School District, Decision 4022-A (PECB, 1993).  The “history of bargaining” criteria tend to grow in importance, from little or no weight among unrepresented employees to a matter of substantial weight in a workforce which has been organized for quite some time.  Grant County, Decision 3350 (PECB, 1989).  The reasons for disturbing such a long-established relationship and resulting collective bargaining agreement would have to be compelling.  Vancouver School District, Decision 4022-A.

 

Since the certification of the bargaining unit by this agency in 1997, the CCESA and the employer have successfully bargained approximately six collective bargaining agreements.  Jim Zdilar, Director of Human Resources and a 26-year employee of the County, and April Hamby, a Records Specialist and 23-year County employee and also the CCESA Vice President, testified that at least one Records Specialist has always been at the bargaining table with the employer.^[3]  The evidence reflects that the incumbent association has bargained separate letters of agreement, settled grievance disputes, and raised issues regarding working conditions on behalf of the Records Specialists.

 

Hamby testified of one instance in the mid-1990’s during contract negotiations where the Records Specialists did not get the pay raises they expected based on their comparables.  However, Hamby also recalled that the Records Specialists conceded pay raises so the Dispatchers could have more favorable scheduling.  Hamby also testified that during contract negotiations for the last two contracts, the Records Specialists agreed to not push for minor language changes related to vacation selections and compensatory time so that Dispatchers could address provisions regarding their work week.  This type of concession is insufficient to support a fragmentation in the bargaining unit structure.  See e.g., Grant County, Decision 3350 (PECB, 1989), citing Grays Harbor County, Decision 3067 (PECB, 1988) (Petition to sever jail detention staff from department-wide bargaining unit dismissed despite evidence that there were some disagreements among unit members as to overall bargaining strategy, leadership on the negotiations team, goals for contract negotiations, and other matters).

 

In the present case, the incumbent association and the employer have a 17-year bargaining relationship.  The record lacks evidence pointing to an internal schism or a breach of duty to represent the petitioned-for employees.  The petitioner only points to the limited instances where the Records Specialists took concessions during contract negotiations, the two departments’ new computer systems, and the 1997 reorganization of the Technical Services Center.  Cf. Snohomish County, Decision 12071 (PECB, 2014)(bargaining unit configuration found inappropriate in part because disagreements between the bargaining unit employees precluded ratification of collective bargaining agreement).

 

No compelling history of bargaining exists to support the severance under this factor.  Vancouver School District, Decision 4022-A.  To remove the petitioned-for positions from the bargaining unit would be inconsistent with the history of labor relations in Cowlitz County, would disturb a 17-year bargaining relationship, and would unduly disrupt a long and stable pattern of representation.  Eastern Washington University, Decision 9950 (PSRA, 2008). 

 

Have the petitioned-for employees maintained a separate identity in the bargaining unit?

The Records Specialists are not the type of employees who have historically been regarded as an identifiable sub-set of employees under Chapter 41.56 RCW.  The Records Specialists bargained with the larger bargaining unit for contract negotiations and memoranda of understanding (MOU) since the bargaining unit’s inception.  The CCESA has also bargained with the County regarding separate MOU’s for issues germane only to the petitioned-for employees.  As also noted above, the incumbent association has bargained on behalf of the Records Specialists in contract negotiations, for separate MOU’s, settled grievance disputes, and raised issues regarding working conditions.

 

Although the Dispatchers and Records Specialists have bargained certain terms and conditions of employment separately, nothing in this record establishes that the Records Specialists have maintained a separate identity during the lengthy bargaining relationship.  Hamby testified that there are approximately sixteen Dispatchers and thirteen Records Specialists.  Historically, there have been fewer Records Specialists than Dispatchers.  While the number of Records Specialists is slightly smaller than the number of Dispatchers, no evidence indicates that they have been marginalized as a result of their numbers.  The totality of the evidence does not support that the Association has withstood the heavy burden to establish that the Records Specialists are an identifiable sub-set within the existing bargaining unit that has maintained a certain level of separate identity from the larger bargaining unit.

 

What is the History and Pattern of collective bargaining within the industry?

Neither Chapter 41.56 RCW nor agency precedent precludes employees performing Records Specialist work from being mixed with other types of non-uniformed employees.  While the Association claims that Records Specialists are a distinct group of employees, the Records Specialists do not have their own distinct community of interest in this case.  The Association failed to establish that the Records Specialists have a separate history and pattern of collective bargaining within the industry. 

 

What is the degree of integration within the bargaining unit?

The level of integration between the Records Specialists and Dispatchers contravenes the proposed severance.  The Records Specialists provide essential services to and coordinate efforts with the Dispatchers to ensure the safety of officers and emergency responders as well as the public.  In City of Lynnwood, a petition to sever public works engineers from the larger bargaining unit was rejected because the public works engineers worked “…in a coordinated effort with other city employees to ensure safety of citizens.”  City of Lynnwood, Decision 10668.  The public works engineers were also considered “…part of an integrated operation which depends upon the performance of their duties as part of the larger organization.”  City of Lynnwood, Decision 10668.  In this case, the Records Specialists are highly integrated with the Dispatchers and coordinate efforts to ensure the safety of law enforcement, emergency responders, and citizens. 

 

 

 

Is the Association qualified to represent the employees?

The Association’s brief indicates the same counsel would represent the proposed bargaining representative as the incumbent association.  Further, Hamby, the petitioner’s president, has experience as a union leader in the incumbent association.  As such, while counsel and union leadership have a long history of representing this bargaining unit, this factor neither favors nor disfavors severance.

 

Conclusion

Based on the well-established and unchanged community of interest, this agency’s certification, long bargaining history, absence of evidence of an internal union schism or allegation of a breach of the union’s duty of fair representation, the petitioning Association has not overcome the heavy burden to demonstrate that severance is appropriate.  As severance of the petitioned-for employees from the larger bargaining unit is not appropriate in this case, the request to sever the existing bargaining unit is denied.  

 

The Emergency Management Personnel

The bargaining unit certified by this agency included the positions of Dispatcher, Records Clerk, EMS Planner, and Office Assistant.  Cowlitz County, Decision 5915.  During the course of the hearing, this agency became aware that the CCESA and employer modified the existing bargaining unit without this agency’s input. 

 

Zdilar testified that the EMS Planner positions in the Emergency Management Department were reclassified to Emergency Coordinators and those positions were removed from the bargaining unit.  Zdilar also testified that the Office Assistant positions were eliminated and the Head Secretary position was reclassified to Emergency Coordinator.  Those positions were also removed from the certified bargaining unit.  Zdilar testified that the CCESA and employer agreed to take this action because the employees in the Emergency Management Department wanted to withdraw from the union.  This occurred in either 1998 or 1999. 

 

The bargaining unit certified by this agency has not been amended or clarified through a unit clarification petition.  Any agreement between the employer and CCESA to alter the composition of the bargaining unit has no official impact on the certification.  Rather, the certification stands as issued in 1997.  Any change to that certification should be sought in accordance with Chapter 391-35 WAC. 

 

FINDINGS OF FACT

 

1.               Cowlitz County is a public employer within the meaning of RCW 41.56.030(12).

 

2.               The incumbent association, the Cowlitz County Emergency Services Association, is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.               The Cowlitz County Emergency Services Association is the exclusive bargaining representative of the bargaining unit described as:  “All regularly scheduled full-time employees of the Cowlitz County Technical Services Center doing the work of dispatcher, records clerk, EMS planner, and office assistant, excluding supervisors, confidential employees, trainees, temporary employees, and all other employees.”  Cowlitz County, Decision 5915 (PECB, 1997).

 

4.               CCESA and Cowlitz County mutually agreed to remove the emergency department employees from the bargaining unit in approximately 1998 or 1999.

 

5.               The LE Records Association is a bargaining representative within the meaning of RCW 41.56.030(2).

 

6.               On October 14, 2013, the LE Records Association filed a petition for investigation of a question concerning representation seeking to sever the Records Specialists from a bargaining unit represented by the incumbent association and to become the exclusive bargaining representative of those employees.

 

7.               The Records Specialist’s general duties include maintaining law enforcement records, assisting and answering inquiries from local law enforcement personnel, other agencies, and assisting in answering inquiries from the public.

 

8.               The Dispatcher’s general duties include receiving and relaying emergency and non-emergency requests for police, fire, and medical services, utilizing radio, telephone, and computer equipment, and performance of general clerical tasks to ensure accurate complaint records and reporting requirements.

 

9.               Both the Records Specialists and Dispatchers have the same health plan, accrue the same vacation and sick leave, receive bonus pay on their anniversary date, and receive floating holidays and bereavement leave.  They work in the same building, work 40 hours per week, and both regularly interact with the public and law enforcement.  Both positions require a high school diploma or equivalent, and candidates for both positions must pass a typing test, and criminal history and background checks.

 

10.           Since 1997, the CCESA and Cowlitz County have successfully bargained approximately six collective bargaining agreements.  .

 

11.           Although the Dispatchers and Records Specialists have bargained certain terms and conditions of employment separately, the Records Specialists have not maintained a separate identity during the lengthy bargaining relationship.

 

12.           The Records Specialists provide essential services to and coordinate efforts with the Dispatchers to ensure the safety of officers and emergency responders, as well as the public.

 

CONCLUSIONS OF LAW

 

1.               The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.

2.               Based upon Findings of Fact 7 though 12, a bargaining unit limited to the Records Specialists would not be an appropriate bargaining unit under RCW 41.56.060.  

 

NOW, THEREFORE, it is

 

ORDERED

 

The representation petition filed by the LE Records Association is DISMISSED.

 

Issued at Olympia, Washington, this  17^th  day of July, 2014.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

MICHAEL P. SELLARS, Executive Director

 

 

This order will be the final order of the

agency unless an appeal is filed with the

Commission under WAC 391-25-660.