DECISIONS

Richard D. Eadie, Attorney at Law, appeared on behalf of the union.

Davis Wright Tremaine, by Stephen M. Rummage, Attorney at Law, appeared on behalf of the employer.

This matter came before the Public Employment Relations Commission on May 18, 1992, for a report on compliance with the remedial order issued by the Commission in the above-captioned case on March 26, 1992. Clark County PUD. Decision 3815-A - PECB [CLARK PUD III].[1] The employer had previously filed a petition for judicial review of our CLARK PUD III decision in the Superior Court for Clark County, and it used the occasion of the compliance report to request that the Commission suspend proceedings on a more recent unfair labor practice case filed by the union.[2] Although not denominated as such, the Commission has treated the employer's request as a motion under RCW 34.05.550, for a "stay" of our CLARK PUD III order.

Applicable Law

The employer's general reliance on precedent under the National Labor Relations Act is neither conclusive nor persuasive. While the Commission and the Washington courts have considered the rules, practices and precedents developed under the federal law in their interpretation and application of state collective bargaining laws, the issues now before the Commission concern Washington procedure.

Prior to deciding any of the unfair labor practice allegations in CLARK PUD II or CLARK PUD III, the Commission had issued a declaratory ruling,[3] holding that it has jurisdiction to regulate collective bargaining between public utility districts and their employees, under Chapter 41.56 RCW. Public Utility District 1 of Clark County, Decision 2125 (PECB, 1985), affirmed, 110 Wn.2d 114 (1988) [CLARK PUD I]. The clear effect of CLARK PUD I is that Washington state procedures apply, even if these parties and/or the affected employees have some substantive rights which derive by reference to federal law.[4] onsistent with that approach, the Supreme Court's dismissal of the employer's petition for judicial review of the CLARK PUD II decision was based on the employer's failure to timely serve the Commission, as required by the state Administrative Procedures Act then in effect.[5]

The above-captioned proceeding is conducted under the 1988 Administrative Procedures Act (APA), Chapter 34.05 RCW, which became effective on July 1, 1989.[6] We dispose of the question before us under that state law.

Effectiveness of the CLARK PUD III Order

Our CLARK PUD III decision directed the employer to "immediately" take steps to remedy its unfair labor practices. The APA deals specifically with the effectiveness of orders issued by Washington state administrative agencies, as follows:

34.05.473 EFFECTIVENESS OF ORDERS. (1) Unless a later date is stated in an order or a stay is granted, an order is effective when entered, but:

 (a) A party may not be required to comply with a final order unless the party has been served with or has actual knowledge of the final order.

(c) For purposes of determining time limits for further administrative procedure or for judicial review, the determinative date is the date of service of the order.

[Emphasis by bold supplied.]

The Commission's computerized docket records, as well as the "Record of Service" mailed with the CLARK PUD III decision, all reflect that the Commission's order was duly served on the employer on March 26, 1992. That order is now in effect.

The Request for a Stay

The procedures for a "stay" of the order of a Washington state administrative agency are also controlled by the 1988 Administrative Procedures Act, as follows:

34.05.550 STAY AND OTHER TEMPORARY REMEDIES. (1) Unless precluded by law, the agency may grant a stay, in whole or in part, or other temporary remedy.

(2) After a petition for judicial review has been filed, a party may file a motion in the reviewing court seeking a stay or other temporary remedy.

[Emphasis by bold supplied]

The employer has not requested the Superior Court for Clark County to grant a stay of the Commission's CLARK PUD III decision.[7] We are not persuaded by the employer's reasons for failing to do so, which relate more to the interlocutory nature of the proceedings in CLARK PUD IV than to the judicial review proceedings on CLARK PUD III.[8]

Assuming, arguendo, that this Commission still has jurisdiction to issue a stay after a petition for judicial review has been filed, we see no basis for doing so in this case.

The complaint in CLARK PUD IV alleges that the union has renewed its bargaining demands in 1991 and 1992, and that the employer continues to refuse to bargain. Acting pursuant to WAC 391-45-110, the Executive Director has made a preliminary ruling, finding that the complaint in CLARK PUD IV states a claim for relief available through the unfair labor practice provisions of a statute administered by the Commission. [9] Under normal procedure, an Examiner has been assigned to conduct further proceedings in that case under Chapter 391-45 WAC.

CLARK PUD IV involves different facts than were involved in either CLARK PUD II or CLARK PUD III. We do not share the employer's view that the judicial review proceedings on CLARK PUD III will necessarily resolve all potential issues in CLARK PUD IV. Moreover, the union has indicated that it will seek additional extraordinary remedies in Clark PUD IV, relying on Municipality of Metropolitan Seattle (METRO). Decision 2845-A (PECB, 1988), affirmed ___ Wn.2d ___ (March 12, 1992) .[10] While we have formed no conclusion as to whether such a remedy should be granted, it is 11 clearly an issue the union is entitled to have addressed.[11]

The processing of CLARK PUD IV during the pendency of the judicial review proceedings on CLARK PUD III could cut off years of delay on such added issues as may be raised in CLARK PUD IV. We also find merit in the union's argument that a "stay" granted at this juncture could tend to undermine the union in the eyes of the employees. In a case where this Commission has already expressed concern about dilatory tactics, we see no reason to contribute to further delay.

For all of the reasons indicated herein, we decline the employer's suggestion that we stay our order in CLARK PUD III or otherwise delay the proceedings in CLARK PUD IV.

NOW, THEREFORE, it is

ORDERED

The request of Clark County Public Utility District 1 for a stay of the remedial order issued by the Commission in Clark County PUD, Decision 3815-A (PECB, 1992), and/or for a suspension of proceedings in Case 9225-U-91-2045 is DENIED.

Entered at Olympia, Washington, the 17th day of June, 1992.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANET L. GAUNT, Chairperson

[SIGNED]

MARK c. ENDRESEN, Commissioner

[SIGNED]

DUSTIN C. McCREARY, Commissioner