City of Spokane, Decision 13353 (PECB, 2021)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

SPOKANE MANAGERIAL & PROFESSIONAL ASSOCIATION, Complainant, vs. CITY OF SPOKANE, Respondent.

CASE 132962-U-20 DECISION 13353 - PECB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Angelo Cruz, Attorney at Law, Robblee Detwiler PLLP, for the Spokane Managerial & Professional Association.

Nathaniel J. Odle, Assistant City Attorney, for the City of Spokane.

On August 10, 2020, the Spokane Managerial & Professional Association (union) filed an unfair labor practice (ULP) complaint against the City of Spokane (employer). The union asserted that the employer unilaterally changed employee pay structures without providing the union notice and an opportunity to bargain. A Public Employment Relations Commission (PERC) Unfair Labor Practice Administrator issued a preliminary ruling on August 20, 2020, stating that a cause of action existed. The undersigned held a hearing conducted by videoconference on January 7, 2021, and the parties submitted post-hearing briefs on March 1, 2021, to complete the record.

Issue

Did the employer refuse to bargain in good faith in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] by unilaterally changing employee pay structures without providing the union notice and an opportunity for bargaining?

Background

The Spokane Managerial & Professional Association represents various employees at the City of Spokane including Computer Professionals. During the time period in the instant case, the parties were subject to a collective bargaining agreement (CBA), which was effective from 2017 to 2021. In December 2019 the Washington State Department of Labor and Industries (L&I) issued new rules governing overtime exemptions from Washington State’s Minimum Wage Act that were to be effective July 1, 2020. As a result of this change, employees represented by the union were no longer exempt from the state overtime requirements.

The employer’s Human Resources department mistakenly believed this change was to be effective January 1, 2021. Through a personal conversation on June 8, 2020, a member of the department became aware of the earlier effective date, at which point the department reviewed the Computer Professional job positions to determine whether they would be subject to the new rules promulgated by L&I. It was determined that 33 employees would no longer be exempt from the overtime rules.

In a videoconference on June 23, 2020, the employer informed the union of this change. The employer also notified the union that, due to constraints imposed by the employer’s payroll software system, the change would take place on June 28, the beginning of the employer’s pay period, in order to comply with the July 1 deadline. During this meeting the employer relayed that the employees being converted from overtime exempt to overtime eligible would no longer be allowed to utilize the “partial leave benefit” outlined in Article VI, Section G.4 in the parties’ CBA, which states:

A salaried employee shall not have his or her leave banks reduced for scheduled and approved absences of less than four hours per day (such as for doctor’s appointments), except that if an employee eligible for intermittent leave under the Family and Medical Leave Act, leave banks as appropriate will be deducted for partial day absences.

The union responded that it would research this issue, and the employer informed the union that it would be notifying employees of the change.

Meghann Steinolfson, who was the interim Human Resources director at the time of the allegation and the Labor Relations manager at the time of the hearing, emailed Samantha Johnson, vice president of the union, and Dave Kokot, president of the union, on the evening of June 25. In this email, Steinolfson informed the union that when the employer had been notifying the impacted Computer Professional employees of the rule change, several employees requested the ability to accrue and use compensatory time. Accordingly, Steinolfson attached a compensatory time proposal to be effective June 28, 2020.

Johnson replied by email the next morning. Johnson thanked Steinolfson for the “proactive benefit proposal” and indicated that the union was “exploring proposals for the City’s consideration.” Johnson also stated that the union “would appreciate a little time to be thorough before discussing with [Steinolfson] and Pam [Bergin, Human Resources Analyst], but [the union would] be in touch.”

On July 2, 2020, Johnson sent a reply email on behalf of the union indicating that the union had conducted research on the matter and “respectfully [demanded its] right to negotiate the changes.” The union also stated that “[n]o change in pay structure or access to benefits should be implemented until negotiations have been completed.”

On July 7, 2020, upon returning to work after vacation, Steinolfson responded to Johnson’s email acknowledging that the union’s demand to bargain impacts was received and indicating that she would be setting up a meeting for bargaining. Steinolfson also indicated that the employer believed that it was unable to postpone changes while negotiations took place:

With respect to your request that no change in pay structure or access to benefits be implemented until negotiations are completed, that action would be a violation under the Department of Labor, and would make the City subject to investigation and fines. Based on the changes imposed by the DOL, the employees FLSA status was changed to hourly, effective June 29^th, the pay period including July 1^st. This information was communicated to the M&P on June 23^rd. We acknowledge and respect the Association’s right to bargain the impacts of these changes, but the changes cannot be delayed based on bargaining.

The parties met on July 14, 2020, to bargain the impacts of the change. The parties discussed options at this meeting. The employer proposed a supplemental bank of 20 personal leave hours. The union proposed that the Computer Professionals be placed in a “salaried, non-exempt” classification. This classification is used by the employer for a group of fire dispatchers, and, as the employer’s software system makes it difficult or impossible to automate such a designation, the employer’s payroll staff manually calculates contractually negotiated overtime. The employer estimated that this adjustment requires significant staff time each pay period and was uninterested in extending this practice to additional employees.

Subsequent to the complaint’s filing in August 2020, the parties worked with a PERC mediator in a continued effort to reach agreement on the impacts of the change and settle this complaint. However, they were unable to reach agreement.

Analysis

Applicable Legal Standards

Duty to Bargain

A public employer has a duty to bargain with the exclusive bargaining representative of its employees over mandatory subjects of bargaining. RCW 41.56.030(4). An employer that fails or refuses to bargain in good faith on a mandatory subject of bargaining commits an unfair labor practice. RCW 41.56.140(4). As a general rule, an employer has an obligation to refrain from unilaterally changing terms and conditions of employment unless it gives notice to the union; provides an opportunity to bargain before making a final decision; bargains in good faith, upon request; and bargains to agreement or a good faith impasse concerning any mandatory subject of bargaining. Port of Anacortes, Decision 12160-A (PORT, 2015); Griffin School District, Decision 10489-A (PECB, 2010) (citing Skagit County, Decision 8746-A (PECB, 2006)).

Unilateral Change

To prove a unilateral change, the complainant must prove that the dispute involves a mandatory subject of bargaining and that there was a decision giving rise to the duty to bargain. Kitsap County, Decision 8292-B (PECB, 2007). Whether a particular item is a mandatory subject of bargaining is a mixed question of law and fact for the Commission to decide. WAC 391-45-550. To decide, the Commission applies a balancing test on a case-by-case basis. The Commission balances “the relationship the subject bears to [the] ‘wages, hours and working conditions’” of employees and “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.” International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission (City of Richland), 113 Wn.2d 197, 203 (1989). The decision focuses on which characteristic predominates. Id. “The scope of mandatory bargaining thus is limited to matters of direct concern to employees. Managerial decisions that only remotely affect ‘personnel matters,’ and decisions that are predominately ‘managerial prerogatives,’ are classified as nonmandatory subjects.” Id. at 200 (citing Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d 338, 341 (1986)).

A complainant alleging a unilateral change must establish the existence of a relevant status quo or past practice and that a meaningful change to a mandatory subject of bargaining occurred. Whatcom County, Decision 7288-A (PECB, 2002); City of Kalama, Decision 6773-A (PECB, 2000); Municipality of Metropolitan Seattle (Amalgamated Transit Union, Local 587), Decision 2746-B (PECB, 1990). For a unilateral change to be unlawful, the change must have a material and substantial impact on the terms and conditions of employment. Kitsap County, Decision 8893‑A (PECB, 2007) (citing King County, Decision 4893-A (PECB, 1995)). The Commission focuses on the circumstances as a whole and on whether an opportunity for meaningful bargaining existed. Washington Public Power Supply System, Decision 6058-A (PECB, 1998).

Decision and Effects Bargaining

The bargaining obligation applies to a decision on a mandatory subject of bargaining as well as the effects of that decision, but it only applies to the effects of a managerial decision on a permissive subject of bargaining. Central Washington University, Decision 10413-A (PSRA, 2011) (citing Skagit County, Decision 6348 (PECB, 1998)); City of Kelso, Decision 2120-A (PECB, 1985); City of Kelso, Decision 2633-A (PECB, 1988). For example, while an employer has no duty to bargain concerning a decision to reduce its budget, the effects of such a decision could constitute mandatory subjects of bargaining. See Wenatchee School District, Decision 3240‑A (PECB, 1990).

While management decisions concerning permissive subjects need not be bargained to impasse, an employer still may have an obligation to bargain the impacts and effects that such decisions have on employee wages, hours, and working conditions. See Grays Harbor County, Decision 8043‑A (PECB, 2004). A union that fails to timely request bargaining over a decision, or the effects of the decision, after receiving adequate advance notice from the employer waives its right to bargain. City of Edmonds, Decision 8798-A (PECB, 2005).

Application of Standards

A Relevant Status Quo Existed

As outlined in the preliminary ruling, the union alleged that the employer made a unilateral change to employee “pay structures.” Through the parties’ verbal and written arguments is it clear that the phrase “pay structures” is an umbrella term used by the parties to encapsulate both whether an employee is overtime eligible or overtime exempt and whether a contractually agreed upon “partial leave benefit” should be provided to employees. The Computer Professionals at issue in this case had been classified as overtime-exempt employees who were eligible for the partial leave benefit. This classification and benefit practice was acknowledged by both parties and was the relevant status quo prior to the change in “pay structures” that gave rise to this dispute.

Changes Were Made to a Mandatory Subject

As indicated above, the Commission employs a balancing test to determine whether the subject of bargaining is mandatory or permissive. If the subject is most like a management prerogative, which only remotely affects “personnel matters,” it is permissive; if the subject is most like wages, hours, and working conditions, it is a mandatory subject. City of Richland, 113 Wn.2d at 200, 203. Whether an employee is eligible for overtime, and thus how an employee must account for their worked and compensated hours, is undoubtedly a subject that is predominantly related to wages, hours, and working conditions. Consequently, overtime eligibility is a mandatory subject of bargaining.

There Was No Opportunity to Bargain

The union successfully established that a meaningful change was made to a mandatory subject and that a relevant status quo existed regarding that subject. As required by Whatcom County, Decision 7288-A, the analysis now focuses on bargaining. An employer must provide notice and an opportunity to bargain before making a final decision. Only after bargaining results in agreement or good faith impasse may an employer make changes to a mandatory subject. Port of Anacortes, Decision 12160-A.

The precipitating event for the changes made by the employer was the December 2019 L&I rule change that raised the salary threshold for Computer Professionals effective July 1, 2020. In accordance with Washington State’s Minimum Wage Act, an employee is considered eligible for overtime unless they meet one of several defined exemptions, such as the exemption for certain Computer Professionals. Having learned on June 8, 2020, that this salary threshold change was to take effect on July 1, 2020, six months earlier than the employer had previously believed, the employer conducted an analysis of the Computer Professionals in its employ and determined that union-represented employees would be impacted. The first time the employer informed the union that employees would be impacted was on June 23, 2020.

While it is unfortunate the employer was unaware of the effective date of this publicized change, the record shows this was an inadvertent mistake. The employer made no attempt to deliberately obfuscate any changes that could necessitate a requirement to bargain. The employer testified that the impact of COVID‑19 on operations resulted in substantially challenging the limited number of Human Resources staff and that the employer sincerely regretted not notifying the union of the change earlier. However, regardless of why the union was not notified of the change earlier, June 23, 2020, was the date the employer first informed the union that approximately 33 of its members would now be classified as overtime eligible and would no longer have access to the partial leave benefit. Additionally, the employer indicated that it intended to make these changes effective June 28, 2020, three days earlier than the July 1, 2020, effective date of the rule change because this was the first day of a pay period. This left the union with less than eight calendar days before the rule change became effective and only five calendar days before the employer’s implementation date of the proposed changes: namely, moving 33 union employees from overtime exempt to overtime eligible and removing their ability to use the partial leave benefit. To be timely, notice must be given sufficiently in advance of the actual implementation of a change to allow a reasonable opportunity for bargaining between the parties. Whatcom County, Decision 13082‑A (PECB, 2020) (citing Washington Public Power Supply System, Decision 6058-A). A mere five or seven calendar days does not provide a reasonable opportunity to bargain.

The union made clear that it wanted to bargain this change. The union informed the employer it wished to research the change at the June 23, 2020, meeting. On June 26, the union emailed the employer indicating that it was still conducting research and was attempting to draft a proposal. The union asked for additional time to do so. On July 2, 2020, the union sent a formal email to the employer demanding to bargain over the changes and stating that no changes should be made until negotiations have been completed. Through these actions, the union made abundantly clear that it wanted to engage in bargaining and needed more than the brief time period the employer provided to research the issue and draft a proposal.

It is clear that the employer’s late notice of the rule change by L&I did not provide a reasonable amount of time for the union to respond and thus there was no opportunity to bargain the changes.

The employer failed to plead (or prove) a legal necessity affirmative defense. An employer can raise a legal necessity defense when compelling practical or legal circumstances necessitate a unilateral change of employee wages, hours, or working conditions. Cowlitz County, Decision 7007-A (PECB, 2000). While the employer here did not identify such an affirmative defense in its answer, the employer did raise defensive arguments in its post-hearing brief, which are addressed below. The respondent is responsible for presenting its defense and has the burden of proof for affirmative defenses. WAC 391‑45‑270(1)(b); Whatcom County, Decision 8512-A (PECB, 2005).

The employer argued that it did not make a “decision” to reclassify the employees. The employer articulated to the union that the change in overtime eligibility (i.e., salaried or hourly) was required by L&I and that failure to comply with the timeline could result in punitive action taken against the employer. Thus, the employer was required to reclassify the employees. Additionally, the employer asserted that since the CBA explicitly states that the partial leave benefit is only available to overtime-exempt employees, the now overtime-eligible overtime Computer Professionals were no longer entitled to the partial leave benefit.

In essence, the employer offered a legal necessity defense.[1] Necessity, either business or legal, is an affirmative defense that the proponent bears the burden of establishing. Cowlitz County, Decision 7007-A. A party claiming a defense of legal necessity to a unilateral change must prove that (1) a legal necessity existed; (2) the respondent provided adequate notice of the proposed change; and (3) bargaining over the effects of the change did, in fact, occur or the complainant waived bargaining over the effects of the change. See Wenatchee School District, Decision 3240-A (PECB, 1990). An employer relies on its erroneous interpretation of law to its detriment.

A legal necessity defense takes for granted that the only way the employer could respond was to change the overtime eligibility status of the 33 effected employees from overtime exempt to overtime eligible and thus a legal necessity was created. However, this is a narrow and incorrect interpretation of how the employer could have responded to the salary threshold rule change. For example, as the union argued, the employer could have sought to raise the wages of the Computer Professionals in question so that they would meet the new salary threshold. Therefore, the first prong of this affirmative defense is not met. Additionally, as explained above, the employer did not provide adequate notice of the proposed change and accordingly cannot prove the second prong of the test.

Finally, even if the employer was legally required to respond to the rule change by reclassifying bargaining unit employees, it does not follow that these employees should automatically be restricted from use of their partial leave benefit. The effect of the classification change was the revocation of the partial leave benefit, and as discussed above, this was not bargained by the parties prior to implementation. Additionally, the union certainly never waived its right to bargain the effects of the change. To the contrary, it clearly and repeatedly indicated a desire to bargain. Therefore, even if the employer did not have to bargain over the change to overtime classification status, it needed to bargain the effects of such change, the third prong of the legal necessity defense, which it did not do.[2]

In conclusion, the employer’s act of changing the status quo of employees who were previously overtime exempt and entitled to the partial leave benefit negotiated in the parties CBA without first engaging in a good faith bargaining constituted an unlawful unilateral change to a mandatory subject of bargaining.

REMEDY

The standard remedy for a unilateral change violation includes ordering the offending party to cease and desist and, if necessary, to restore the status quo; make employees whole; post notice of the violation; and order the parties to bargain from the status quo. City of Anacortes, Decision 6863‑B (PECB, 2001).

The standard remedy for unilateral change cases would require that the employer restore the status quo that existed before the unilateral change. Id. In the instant case, a return to status quo is frustrated by the change in L&I rules that promulgated the dispute in the first place. In Rose v. Erickson, 106 Wn.2d 420 (1986), the Supreme Court found that the meaning of RCW 41.56.905 is clear and held that chapter 41.56 RCW prevails in a conflict with another statute. However, if apparent conflicts in the statutes can be reconciled and effect given to each without distortion of the language used, the statutes will be harmonized. City of Auburn, Decision 10062 (PECB, 2008) (citing Peninsula School District No. 401 v. Public School Employees of Peninsula, 130 Wn.2d 401 (1996)).

Chapter 41.56 RCW is remedial in nature, and its “provisions should be liberally construed to effect its purpose.” Whatcom County, Decision 13082-A (citing International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101, 109 (1978)). The Commission has authority to issue appropriate orders that, in its expertise, the Commission “believes are consistent with the purposes of the act, and that are necessary to make its orders effective unless such orders are otherwise unlawful.” Municipality of Metropolitan Seattle v. Public Employment Relations Commission, 118 Wn.2d 621, 634–35 (1992). See also Snohomish County, Decision 9834‑B (PECB, 2008). An order to return to the status quo now would directly contravene the overtime rule change and cause existing employees to miss potential overtime opportunities. But there is no impediment to reinstating the partial leave benefit. In this way, the remedy of a return to status quo is effectuated to the extent possible without conflicting with other statutory requirements. Therefore, the employer must reinstate the partial leave benefit in order to effectuate bargaining from the status quo as close as possible, and the parties must negotiate over the impacts of the L&I rule change.

The union also seeks the extraordinary remedy of an award of attorney fees. While the Commission has the discretion to fashion remedies to prevent and remedy unfair labor practices, attorney fees are an extraordinary remedy to be awarded in the rarest of circumstances. Island County, Decision 11946-A (PECB, 2014). Based on the facts and circumstances presented in this matter, I decline to order the extraordinary remedy requested by the union.

Findings of Fact

1.                  The City of Spokane (employer) is a public employer within the meaning of RCW 41.56.030(13).

2.                  The Spokane Managerial & Professional Association (union) is a bargaining representative within the meaning of RCW 41.56.030(2).

3.                  The parties were subject to a collective bargaining agreement (CBA), which was effective from 2017 to 2021.

4.                  In December 2019 the Washington State Department of Labor and Industries (L&I) issued new rules governing overtime exemptions from Washington State’s Minimum Wage Act that were to be effective July 1, 2020.

5.                  The employer’s Human Resources department mistakenly believed this change was to be effective January 1, 2021. Through a personal conversation on June 8, 2020, a member of the department became aware of the earlier effective date, at which point the department reviewed the Computer Professional job positions to determine whether they would be subject to the new rules promulgated by L&I. It was determined that 33 employees would no longer be exempt from the overtime rules.

6.                  In a videoconference on June 23, 2020, the employer informed the union of this change. The employer also notified the union that, due to constraints imposed by the employer’s payroll software system, the change would take place on June 28, the beginning of the employer’s pay period, in order to comply with the July 1 deadline. During this meeting the employer relayed that the employees being converted from overtime exempt to overtime eligible would no longer be allowed to utilize the “partial leave benefit” outlined in Article VI, Section G.4 in the parties’ CBA, which states:

A salaried employee shall not have his or her leave banks reduced for scheduled and approved absences of less than four hours per day (such as for doctor’s appointments), except that if an employee eligible for intermittent leave under the Family and Medical Leave Act, leave banks as appropriate will be deducted for partial day absences.

7.                  The union responded that it would research this issue, and the employer informed the union that it would be notifying employees of the change.

8.                  Meghann Steinolfson, who was the interim Human Resources director at the time of the allegation and the Labor Relations manager at the time of the hearing, emailed Samantha Johnson, vice president of the union, and Dave Kokot, president of the union, on the evening of June 25. In this email, Steinolfson informed the union that when the employer had been notifying the impacted Computer Professional employees of the rule change, several employees requested the ability to accrue and use compensatory time. Accordingly, Steinolfson attached a compensatory time proposal to be effective June 28, 2020.

9.                  Johnson replied by email the next morning. Johnson thanked Steinolfson for the “proactive benefit proposal” and indicated that the union was “exploring proposals for the City’s consideration.” Johnson also stated that the union “would appreciate a little time to be thorough before discussing with [Steinolfson] and Pam [Bergin, Human Resources Analyst], but [the union would] be in touch.”

10.              On July 2, 2020, Johnson sent a reply email on behalf of the union indicating that the union had conducted research on the matter and “respectfully [demanded their] right to negotiate the changes.” The union also stated that “[n]o change in pay structure or access to benefits should be implemented until negotiations have been completed.”

11.              On July 7, 2020, upon returning to work after vacation, Steinolfson responded to Johnson’s email acknowledging that the union’s demand to bargain impacts was received and indicating that she would be setting up a meeting for bargaining. Steinolfson also indicated that the employer believed that it was unable to postpone changes while negotiations took place:

With respect to your request that no change in pay structure or access to benefits be implemented until negotiations are completed, that action would be a violation under the Department of Labor, and would make the City subject to investigation and fines. Based on the changes imposed by the DOL, the employees FLSA status was changed to hourly, effective June 29^th, the pay period including July 1^st. This information was communicated to the M&P on June 23^rd. We acknowledge and respect the Association’s right to bargain the impacts of these changes, but the changes cannot be delayed based on bargaining.

12.              The parties met on July 14, 2020, to bargain the impacts of the change. The parties discussed options at this meeting. The employer proposed a supplemental bank of 20 personal leave hours. The union proposed that the Computer Professionals be placed in a “salaried, non-exempt” classification. This classification is used by the employer for a group of fire dispatchers, and, as the employer’s software system makes it difficult or impossible to automate such a designation, the employer’s payroll staff manually calculates contractually negotiated overtime. The employer estimated that this adjustment requires significant staff time each pay period and was uninterested in extending this practice to additional employees.

Conclusions of Law

1.                  The Public Employment Relations Commission has statutory jurisdiction in this matter cpursuant to chapter 41.56 RCW and chapter 391-45 WAC.

2.                  By the actions described in findings of fact 3–12, the employer refused to bargain in violation of RCW 41.56.140(4), and derivatively RCW 41.56.140(1), by unilaterally changing the pay structure of Computer Professionals without providing the union with notice and an opportunity for bargaining.

Order

The City of Spokane, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.                  CEASE AND DESIST from:

a.                   Unlawfully implementing changes to the status quo when bargaining the impacts of overtime exemption rule changes promulgated by L&I.

b.                  In any other manner interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

2.                  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of chapter 41.56 RCW:

a.                   Restore the status quo ante by reinstating the partial leave benefit that existed for the employees in the affected bargaining unit prior to the unilateral change found unlawful in this order.

b.                  Give notice to and, upon request, negotiate in good faith with the Spokane Managerial & Professional Association before changing mandatory subjects impacted by a change to employee overtime exemptions.

c.                   Contact a compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for posting. Post copies of the notice provided by the compliance officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.

d.                  Read the notice provided by the compliance officer into the record at a regular public meeting of the City Council of the City of Spokane, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.

e.                   Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the compliance officer.

f.                    Notify the compliance officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the compliance officer with a signed copy of the notice the compliance officer provides.

ISSUED at Olympia, Washington, this  1st  day of June, 2021.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Erin J. Slone-Gomez, Examiner

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.