STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 2299,
Complainant,	CASE 7541-U-88-1578
vs.	DECISION 3286 - PECB
CITY OF CLARKSTON,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Pamela G. Bradburn, Attorney at Law, appeared on behalf of complainant.

Rov Wesley, Labor Relations Consultant, appeared on behalf of the employer.

International Association of Fire Fighters, Local 2299, filed a complaint charging unfair labor practices with the Public Employment Relations Commission on August 24, 1988, wherein it alleged that the City of Clarkston had violated RCW 41.56 140(1) and (2), by unilaterally adopting new work rules which changed conditions of employment of bargaining unit employees in regard to hours of work and duty assignments, and by discussing such changes with members of the bargaining unit rather than with union officers. A hearing was held on March 15, 1989, before Examiner William A. Lang. The union amended its complaint at the hearing. Post-hearing briefs were filed by both parties on April 28, 1989.

BACKGROUND

International Association of Fire Fighters, Local 2299, is the exclusive bargaining representative of "uniformed personnel" within the meaning of RCW 41.56.030(7) who are employed by the City of Clarkston as fire fighters and fire captains. The employer and the union have had a collective bargaining agreement.[1]

Prior to the onset of these proceedings, the work schedule for bargaining unit employees (using 24-hour "military time") was as follows:

Week Day Schedule

Deviations from the above schedule will be expected as a result of emergencies. Other changes shall be cleared through me. Occasional scheduling conflicts and commitments to the public may also result in a change to the above schedule on a day-by-day basis. It is your responsibility to check the commitment log each morning when reporting to duty.

At a meeting held with the captains on April 28, 1988, Fire Chief Robert G. Berreman presented a new work schedule for comment. One of the captains, Mark Kammers, thought the schedule represented a change in working conditions, and suggested that Berreman should discuss the changes with the union. The changed work schedule was:

(NEW) Daily Work Schedule [2]

THE KITCHEN WILL BE CLEANED AFTER EACH MEAL: (DISHES, TABLE AND COUNTER TOPS, ETC.)

SATURDAY

SUNDAY

Holiday Schedule

On contract Holidays employees will still need to maintain equipment and station. Other duties will be at a minimum.

On May 9, 1989, Local 2299 President Kathy Hopfner wrote a letter to Mayor Ann Silvestri, requesting negotiations on a possible change in working conditions resulting from the new schedule. On May 11, 1989, Berreman wrote a letter to Hopfner, at the request of Silvestri, clarifying the work schedule:

1. CPR classes are those classes we have scheduled the second Thursday of every month at 7:00 P.M. and the 4th Saturday of every month at 9:00 A.M. We also teach CPR classes to any group of people who have a large enough group to have their own CPR class scheduled.

2. Drills. We have regular scheduled Tuesday night drills at 7:30 P.M. and I want daily and weekend drills for paid personnel on duty. We also have drills for new volunteer firefighters in the evenings and weekends. (i.e. training van and auto extrication classes, etc.)

3. Duties and special projects as assigned. This could be events like driving the fire truck in parades, covering the boat races or the 4th of July fireworks show and the Asotin County Fair. There are many other special events we have covered in the past. We do all of these for the continued betterment of the citizens of Clarkston ....

On May 16, 1988, Hopfner wrote to Silvestri, requesting discussion on a document entitled, "Clarkston Fire Department Rules and Procedures" which she had found inserted into the personnel manual. Hopfner was uncertain as to whether the fire chief intended the rules to be in force immediately, or as merely intended for union review. In either case, she perceived the rules as possible changes in working conditions.[3]

On July 8, 1988, Hopfner made yet another written request, by letter to Silvestri, for negotiations on the recent changes in working conditions instituted by the fire department.

Responding for Silvestri on July 12, 1988, Berreman asked Hopfner to list the specific changes which the union wished to discuss.

On August 2, 1988, Hopfner replied to Berreman by letter addressed to Silvestri, listing the following changes in rules and work schedule:

1.         drills and duties on evenings

2.         drills and duties on Saturday and Sunday

3.         attendance for the 40 hour employee

4.         7 days notice for requests for time off

5.         manning of station, specifically the portion that deals with our upcoming grievance.

6.         FLSA and schooling.

Hopfner also requested a list of provisions in the personnel manual which applied to the union.

On August 16, 1988, City Attorney Scott C. Broyles wrote Hopfner, confirming a date for negotiations on a successor agreement. Broyles also expressed the city's willingness to discuss any other concerns, including the rules and regulations.

Notwithstanding the indications of readiness to bargain contained in the employer's August 16, 1988 letter, discussions on the schedule and rule changes apparently did not take place.

POSITION OF THE PARTIES

The union argues that the employer unilaterally adopted changes in work schedules and rules while negotiations for a collective bargaining agreement were ongoing. The union claims that Berreman admitted discussing these changes with employees directly, that he by-passed union representatives in doing so.

The employer contends that there were, at most, some minimal, unintended changes in working conditions, which it is willing to negotiate with the union. The employer also claims it had the right under the parties' collective bargaining agreement and the previous work schedule to make changes in schedules and work assignments.

DISCUSSION

The Examiner observes at the outset that this is not a case of a recalcitrant employer. Many of the issues raised by the union in this proceeding by the union can only be characterized as "de minimis". Others can be described as unintentional or minor violations, easily corrected. Both parties showed a willingness to be reasonable, and demonstrated little or no animosity toward each other. This is a controversy which should, with some diligence, have been settled without litigation.

As sometimes happens, however, the controversy now before the Examiner in this case raises a question of great consequence to fire fighters and their employers throughout the state of Washington, far beyond the import of the actual unilateral changes here. Since the alleged changes in duties occur in the context of a work shift of 24 hours duration, where employees have traditionally enjoyed substantial rest time, this case raises the basic question as to the right of a fire department employer to assign additional duties or to modify the regular routine. It is that basic question which must be answered before examining whether the employer fulfilled its duty to bargain in this case.

The Employer's Right to Change Duty Assignments

The several aspects of the announcements made by the employer are dealt with separately in this analysis.

Addition of Scheduled Work Time -

The union argues that it is a generally recognized industrial practice in fire suppression entities that fire fighters working a 24-hour shift perform a schedule of duties during part of their shift, and are on standby during the balance of their duty shift. Although the fire fighter is paid for 24 hours of duty, the union contends that it is generally recognized that the fire fighter may engage in personal leisure time activities, such as reading, watching television or playing games during the standby period. The union argues that the fact of beds and recreational equipment being provided in fire stations is proof of this reality. Although it cites no case precedent in support of the contention, it is the position of the union that any replacement of such personal time with active duties is a change in working conditions that must be bargained. The employer did not argue this point.

The rest periods, meal breaks and non-emergency assignments of fire fighters after "business hours" are, plain and simple, matters of "hours" which are mandatory subjects of collective bargaining under Chapter 41.56 RCW. City of Bellevue, Decision 2788 (PECB, 1987). In Bellevue, the union had proposed that certain types of non-emergency duties be excluded from the period between 10:30 p.m. and 8:00 a.m., and the employer responded with an unfair labor practice charge claiming that the proposal was a permissive bargaining subject. The complaint was dismissed, noting that while the proposals advanced by the fire fighters may well restrict the right of the management they are not thereby rendered unlawful.

In the case now before the Examiner, the past practice under the "Daily Work Schedule" was that active work assignments were generally limited to the hours of 0800 (8:00 a.m.) and 1700 (5:00 p.m.), Monday through Friday, and 0900 (9:00 a.m.) to 12:00 noon on weekends. Except for a few regularly scheduled drills and training activities, the remaining hours were on standby. During this standby time, the fire fighter could be called to respond immediately to alarm dispatches and engage in arduous fire suppression activities or medical emergency responses. The fire fighters could otherwise engage in personal activities at the fire station during those standby hours. The standby concept is recognized in the industry as a period of required rest and relaxation for reasons of personal safety. Needless to say, the effectiveness of a fire fighter would be diminished if he or she were required to engage in scheduled work assignments during any significant portion of the traditional standby period. For these reasons, and in line with holding in City of Bellevue, supra, the Examiner concludes that any change in the daily schedule of fire fighters which would diminish the period of standby must be negotiated as a mandatory subject of bargaining.

Changes of Duty Assignments -

It is well settled in the private sector that the employer has an obligation to bargain on such subjects as work loads, work standards, shop rules and work schedules. The National Labor Relations Board held in Kendall College, 228 NLRB 1083 (1977), that changes in work assignments are a mandatory subject of collective bargaining, unless the changes are not substantial or significant. See, also, Alamo Cement Co., 277 NLRB 1031 (1985). In Charmers Industries, 250 NLRB 31 (1980), a change in procedures was found to be bargainable, because the change resulted in a substantial increasing duties. In many such decisions, the NLRB has applied a "balancing test", seeking in the decision-making process to determine whether the employer's interest in managing the enterprise outweighed the employees' interest in the working conditions. In any event, even if the decision is determined to be a management prerogative, the effects of any management decision must also be bargained. First National Maintenance Corp. v. NLRB, 452 US 666 (1981). See, also, City of Kelso, Decision 2120-A (PECB, 1985).

In the public sector, the right of an employer to assign duties during certain times within the work day has been ruled an inherent management right in some jurisdictions.[4] In IAFF Local 314 v. the City of Salem, 7 PECBR 5819 (1983), the Oregon Employment Relations Board ruled that "a union drill time proposal would derogate the city's right to assign duties during the work day, leaving the employee the right to decide what training he will engage in during the work week." The Pennsylvania Supreme Court determined that social worker case loads were not negotiable, concluding that such assignments vitally affected management policy even though they had a substantial impact on employment conditions. Pennsylvania Social Service Union v. Pennsylvania Labor Relations Board, 503 Pa.236 (1983). On the other hand, a re-allocation of duties between job classifications gave rise to a duty to bargain in City of Hoquiam, Decision 745 (PECB, 1979),[5] and the Kansas Supreme Court has ruled that an action to change a team teaching period to a regular teaching period was a mandatory subject for bargaining by a school district. NEA-Wichita v. Unified School District No. 259, 234 Kan. 512 (1983).

Since the union has conceded the point, changes in work activities Since the union has conceded the point, changes in work activities within the normally scheduled work time will be deemed, for the purpose of this decision, to be at the discretion of the employer.[6] In line with the holding in City of Kelso, supra, any effects of such a decision on employee wages, hours and working conditions must still be bargained, on timely demand.

Were There Unilateral Changes?

The union contends that the employer made several changes in working conditions.

Standby Time -

The duties performed during the "standby" portion of the duty shift [(i.e., in the hours between 1700 (5:00 p.m.) and 0800 (8:00 a.m.)] were previously limited to emergency calls, Tuesday night drill and occasional CPR classes. The union interprets paragraph 2 of Berreman's May 11, 1988 letter as an announcement that the employer intended to assign drills on evenings other than Tuesdays.

The letter, which is reproduced above, does not specifically state that drills for bargaining unit employees[7] would be scheduled other than on the customary Tuesday evenings. The pertinent part of the letter mentions "daily and weekend drills for paid personnel". Berreman testified that he attempted in his May 11th letter:

[T]o explain to Kathy Hopfner, the president of what I meant by drills and CPR classes was the ones that we had scheduled. So I felt that those were not drastic changes. It was put into writing, past practice.

Transcript at page 72, lines 19-24.

Based on that testimony, and the fact that the previous schedule called for drills and training between 1300 (1:00 p.m.) and 1500 (3:00 p.m.), the Examiner concludes that it is not clear that the letter actually contemplated any substantial change in the evening routine.

Weekend Duties -

In the past, weekend duties were confined to cleaning the kitchen on Saturdays, cleaning the bay (garage) where fire apparatus is housed on Sundays, and routine vehicle maintenance on both days. The new schedule continues the practice of weekend cleaning and vehicle maintenance, but seems to add the possibility of special projects and drills to the routine.

The union argues that the testimony of Berreman and his May 11th letter confirms a change in the weekend routine, and specifically of a plan to assign drills to paid personnel on weekends. The Examiner agrees, and is not persuaded by the employer's claim that the scheduling of weekend drills for paid personnel was merely a mere "routinization" of sporadic events or, at most, a "minor modification of duties".

While the union claims that "giving extra attention" to vehicles was a departure from the past practice of "routine maintenance", the record does not disclose the existence of a change other than a semantic difference. If there was a change, it appears to have been within the management prerogative to set work standards that was conceded by the union.

Special Events -

The record shows that the fire chief (or captain) would, from time to time, make announcements at the Tuesday night drills, seeking persons willing to cover community events. If nobody accepted the task, apparently an on-duty fire fighter would be asked to cover the event if there were at least three fire fighters on duty during the shift. If there were no volunteers and fewer fire fighters on duty, the community event would not be covered.

The union expressed concern that the past practice was being changed, because events were to be assigned, and it appears that the point is well taken. The fire chief expressed the concern that some past events were not covered, and thus "clarified" the point in a manner which indicates that the practice would, in fact, be changed. Even though these events occur only four or five times a year, such a change must be bargained.

Requests for Time Off -

The record shows that the past practice concerning requests for time off was very informal. The new rules require a seven day notice for days off, and a two hour notice for sick leave.

While leaves and various forms of "time off" are mandatory subjects for bargaining, the union waived its right to bargain the sick leave notice by its letter of August 2, 1989.

Call-Back Procedure -

In the past, the captain on duty would call fire fighters back to work when the fire department's on-duty crew was short of personnel. Alternatively, the captain on duty would ask the fire chief for guidance.

The new rules indicate anyone on vacation or holiday from the shift that was short will be subject to being called back. The union argues that this procedure is the subject of a grievance, and that the chief has codified into the rules the position that is disputed in that grievance. Although the employer may ultimately have the authority to call back personnel to cover short shifts, the order and protocol for making such a call back is a mandatory subject of bargaining. If the shift has to be covered by off-shift employees, the new rules require that the shift be covered by the employees on a "Kelly day",[8] with the most senior employee having the first choice of day, swing or graveyard shift. The past practice was that the senior fire fighter would take the entire 24 hour shift. Overtime assignments are mandatory subjects of bargaining and may not be unilaterally changed.

Attendance Policies -

The past practice is that all employees have reported for regular work shifts at 0800 (8:00 a.m.). The new rules stipulate that "day shift" employees will report to work at the time when the chief assigns them, and the union argues that the new rule would enable the employer to change the shift starting time of its personnel, at will.

Work schedules, including shift starting times, are part of "hours of work", and are a mandatory subject of bargaining. City of Auburn, Decision 901 (PECB, 1980).

Overtime Computations under the Fair Labor Standard Act -

The union contends that there is no clear past practice concerning overtime pay while attending schools, etc., and that time could be taken in the past in increments of less than one hour. The new rules deal with hours of work and time off when attending schools or meetings on duty time and taking FLSA hours in increments of at least one hour. Berreman testified he intended to follow the FLSA, but both of these are still mandatory subjects of bargaining. In the absence of a past practice, the establishment of a new standard must be bargained.

Uniform Requirement -

The disputed rules give the chief the right to approve emblems and badges worn by bargaining unit employees on their uniforms. While the wearing of union insignia is a mandatory subject which, in the absence of a past practice, must be negotiated, the union did not establish whether there was any change of practice, and the employer failed to establish it a waiver of union bargaining rights. Further, the Examiner finds that the union waived its right to bargain by its letter of August 2, 1988.

Use of City Vehicles for Personal Errands -

Personal use of government-owned vehicles was forbidden by letter from the Mayor. The union did not contest the change of practice, and it has waived any rights it may have had to negotiate the matter.

Summary -

Under RCW 41.56.470 existing wages, hours and other conditions of employment may not be changed during the pendency of interest arbitration proceedings. City of Seattle, Decision 1667-A (PECB, 1984). These parties were engaged in collective bargaining when the changes occurred. Based on the above analysis, the Examiner concludes that the employer has, in fact, made unilateral changes on subjects on which there is a duty bargain: Week end drills, special events, requests for time off, call back procedures, attendance and FLSA compliance.

Did the Union Waive Its Right to Bargain the Changes?

The employer argues that it has a contractual right, under Articles VIII and XXX of the parties' collective bargaining agreement, to adopt rules and schedule hours. In addition, the employer maintains that it was willing to bargain the changes, but that the union failed to do so. The union responds that it was confronted with a fait accompli, which put the union in the position of seeking to bargain back to the status quo, rather than the employer seeking to bargain changes. The union also points out that it reserved the right to bargain mandatory subjects under Article VII of the parties' contract.

The pertinent contract provisions are:

Article VII, Union Rights.

By agreeing to the management rights clause, Article XXX, the union does not waive any right to bargain mandatory subjects or other rights and privileges provided for in RCW 41.56, et seq.

Article VIII, Hours of Duty.

... Employees assigned to an 8 hour duty shift shall have as their shift 8 hours per day, five days per week for a 40 hour week.

...

Article XXX, Management Rights Clause

Any and all rights concerned with management and operation of the Department are exclusively that of the City, unless otherwise provided by the terms of this agreement. The City has the authority to adopt rules for the operation of the Department and conduct of its employees, provided such rules are not in conflict with the provisions of this agreement, or with applicable laws. The City has the right(among other actions) to ... assign work and determine duties and performance standards of employees; to determine, establish and/or revise the method and processes and means of providing Department service, to schedule hours of work ... and perform all other functions not otherwise expressly limited by the agreement.

The management rights clause outlined above is typical of the general language found in public sector collective bargaining agreements. Such clauses have been generally determined insufficient to constitute a waiver of an employer's obligation to changes in mandatory subjects of bargaining. City of Kennewick, Decision 482-B (PECB, 1980). To be effective, a waiver must be specific to the subject matter, and must be knowingly made. Further, any waivers under this clause have been nullified by Article VII, Union Rights.

The employer is incorrect in its contention that, if the two articles are taken to their "logical conclusion" the union could re-bargain the contract. Neither party could insist during the term of the agreement on negotiating that which had been agreed to and set forth in the agreement. The effect of the two articles is that the city must bargain new practices or changes of practices which are mandatory subjects of bargaining that are not spoken to in the contract. There is no waiver of union bargaining rights.

The employer also fails to persuade with its argument that the original schedule contained waiver language which permitted Chief Berreman to change the schedule at will. The provision in question is not a waiver. It merely recognizes that "deviations from the above schedule" are subject to emergencies and other unforseen conflicts. The reasons for the changes appear to have accumulated over time, and it cannot be concluded that the cited provision was a waiver, knowingly made, on the specific subject matter.

The employer contends that many of the so-called changes are speculative, and at best minor. As noted above, provisions which empower an employer to make future changes are waivers, but waivers of union bargaining rights on mandatory subjects must be clear and unmistakable. The fact of these changes being applicable only in the future does not make them any less subject to being bargained.

Finally, the employer's contention that it was willing to negotiate the changes, and invited the union to do so, is not persuasive. It is well settled that an employer cannot satisfy its duty to bargain by first making a change in working conditions and then offering to bargain. City of Tukwila, Decision 2434-A (PECB, 1987). The union is entitled to influence the decision before it is finalized and implemented, and is not obligated to engage in a futile negotiations to restore the original conditions.

The Charge of Circumvention

The union moved to amend the complaint at the hearing to include charges of circumvention and interference, contending that Berreman's testimony contained admissions that he discussed changes in mandatory subjects directly with members of the bargaining unit, rather than with union representatives. The employer argues that the discussions were informal, and did not constitute negotiations. Moreover, the employer argues the discussions were in the open, with union officers present.

Berreman testified that the rules changes came up on a couple of occasions when he engaged in chit-chat with several fire fighters while sitting around the coffee table. There is no evidence on what specifically what was said, and there is certainly no evidence that "negotiations" took place. Recognizing that conversation is commonplace in small departments, no violation will be found. The Examiner is not persuaded that any such discussions rose to the level of circumvention, or could reasonably have been interpreted as undermining the union's status as exclusive bargaining representative.

FINDINGS OF FACT

1.                  The City of Clarkston is a "public employer" within the meaning of RCW 41.56.030(1). At all times pertinent hereto, Robert G. Berreman was fire chief.

2.                  International Association of Fire Fighters Local 2299, a "bargaining representative" within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of non-supervisory fire fighter employees of the City of Clarkston. At all times pertinent hereto, Kathy Hopfner was the president of the union. The employees involved are "uniformed personnel" covered by the interest arbitration procedures of RCW 41.56.430, et seq.

3.                  During the time pertinent hereto, the union and the employer were engaged in collective bargaining negotiations to replace their agreement which expired on December 31, 1987. The parties' collective bargaining agreement did not contain clear and unmistakable waivers of the union's right to bargain concerning changes of wages, hours and working conditions not specified in the contract.

4.                  On April 28, 1988, Berreman issued a new work schedule which clarified the current work schedule which made changes in the weekend routine and with respect to special projects.

5.                  Sometime around May 16, 1988, Berreman issued a document entitled, "Clarkston Fire Department Rules and Procedures", which contained new or changed rules concerning: requests for time off, call back, attendance, uniforms, and FLSA compliance. Such matters affect the wages, hours and working conditions of bargaining unit employees.

6.                  At various times, Berreman discussed the various changes with bargaining unit employees in the context of casual conversations held in the fire station. The record does not contain specific evidence of what was said during such conversations, or that any negotiations took place.

7.                  Local 2299 made timely demands to bargain the changes referred to in paragraphs 4 and 5 of these findings of fact, by letters directed to the employer on May 9, 1988, May 16, 1988, and July 8, 1988.

8.                  On May 11, 1988, Berreman wrote Hopfner, clarifying the schedule changes. On July 12, 1989, Berreman wrote Hopfner asking what specific changes the union desired to discuss.

9.                  On August 2, 1988, Hopfner sent a letter to the employer, listing drills and duties, hours of 40 hour schedule, requests for time off, FLSA and schooling, and callback procedures.

10.              On August 16, 1989, the employer expressed a willingness to discuss the already-implemented changes with the union in negotiations on the successor agreement.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to 41.56 RCW.

2.                  The changes in work schedule described in paragraph 4 of the foregoing findings of fact and the changes of rules described in paragraph 5 of the foregoing findings of fact affected the wages, hours and working conditions of bargaining unit employees, and were mandatory subjects of collective bargaining within the definition of RCW 41.56.030(4).

3.                  By unilaterally adopting the changes referred to in paragraph 2 of these conclusions of law, and by refusing to bargain in response to a timely request to bargain concerning said changes, the City of Clarkston has committed, and is committing, unfair labor practices in violation of RCW 41.56.140(1) and (4).

4.                  The complainant has failed to sustain its burden of proof that the conversations described in paragraph 6 of the foregoing findings of fact were a circumvention of the union under RCW 41.56.140(4).

ORDER

The City of Clarkston, its officers and agents, shall immediately:

A.                        Cease and desist from failing and refusing to bargain in good faith with International Association of Fire Fighters, Local 2299, as the exclusive bargaining representative of its employees in the certified bargaining unit, with respect to all wages, hours and working conditions and specifically with respect to the effects of the decision to change work activities within the work day and with respect to weekend duties, special events, time off, call back, hours of work, attendance and overtime policies.

B.                        Take the following action to remedy the unfair labor practices and to effectuate the policies of the Public Employees' Collective Bargaining Act:

1.                  Reinstate the work schedule and rules subject to this order which were in effect prior to April 28, 1988.

2.                  Give notice to and, upon request, bargain collectively in good faith with the International Association of Fire Fighters, Local 2299, prior to implementing any change of wages, hours or working conditions of employees in the certified bargaining unit; and, in the event that resolution of any matter is not achieved through negotiations, submit the dispute for mediation and, if necessary, for interest arbitration for determination as required by RCW 41.56.430, et seq.

3.                  Notify all employees, by posting, in conspicuous places on the employer's premises where notices to bargaining unit employees are usually posted, copies of the notice attached hereto and marked "Appendix". Such notices shall be signed by an authorized representative of the City of Clarkston and shall be and remain posted for sixty (60) days. Reasonable steps shall be taken by the City of Clarkston to insure that said notices are not removed, altered, defaced or covered by other material.

4.                  Notify the Executive Director of the Public Employment Relations Commission, in writing, within twenty (20) days following the date of this order, as to what steps have been taken to comply herewith and at the same time provide the Executive Director with a signed copy of the notice required by the preceding paragraph.

DATED at Olympia, Washington, this 14th day of September, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

WILLIAM A. LANG, Examiner

This order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.