Highline School District, Decision 8659 (PECB, 2004)

                         STATE OF WASHINGTON


WASHINGTON,                        )
                                   )    CASE 17995-U-03-4631
                    Complainant,   )
                                   )    DECISION 8659 - PECB
          vs.                      )
                                   )    ORDER DENYING MOTION TO
                                   )    CONDITIONAL MOTION TO
                    Respondent.    )    REOPEN EVIDENTIARY
                                   )    HEARING

In the complaint filed herein on November 19, 2003, Highline
Association of School Support Personnel (union), a local of Public
School Employees of Washington, alleged that Highline School
District (employer) on or about September 1, 2003, transferred
certain identified bargaining unit work to employees of another
bargaining unit after refusing, on July 17, 2003, a request by the
union to bargain the decision to transfer the work.

The union further alleged that in conjunction with its request for
bargaining over the decision to transfer bargaining unit work, it
requested bargaining upon the impact of such decision upon
bargaining unit employees which the union alleged occurred in July
2003.  The union asserted in the complaint that a tentative
agreement was reached on impacts in July 2003, but the employer
refused to sign a document incorporating such agreement.

The preliminary ruling herein found the allegations of refusal to
bargain the decision and to execute a document setting forth the
terms of an agreement with respect to bargaining upon impacts of the
asserted transfer of work, if proven, could establish a violation of
RCW 41.56.140(1) and (4).

The hearing in the above-captioned case was held on July 14, 2004.
The union filed the subject motions on July 15, 2004, by first class
mail.  The Examiner denies the motions for reasons set forth


The union seeks to amend its complaint to conform to evidence it
asserts was received into evidence without objection by the parties.
 For purposes of its motions, the union contends the evidence showed
significant reductions in staffing levels of bargaining unit
employees assigned to the employer's Title I reading program
effectuated for economic reasons only.  The union argues the
employer refused to negotiate with the union concerning the asserted
decision to reduce staffing levels, in violation of RCW
41.56.140(4).  The union asserts further that the evidence showed
that each school principal, on behalf of the employer, decided for
his/her school whether to reduce staffing levels of bargaining unit
employees in the Title I reading program.  The union contends such
site-based decision process violated an alleged duty to appoint a
specific bargaining representative to negotiate with the union, in
violation of RCW 41.56.140(4).

The union maintains its motion to amend the complaint is timely
because the hearing is not closed until receipt of post-hearing
briefs.  The union, in its conditional motion, argues that, if the
Examiner rules the hearing is closed, the hearing should be reopened
for the union to submit its motion to amend the complaint on the
basis that the evidence, upon which the amendment is predicated, was
known to the employer prior to the hearing, introduced by the
employer, and the union could not have known of its existence
because of prior inconsistent information submitted to the union
pursuant to a request for data.


The employer contends the motion is untimely and must be denied
because it was filed after the close of the evidentiary hearing on
July 14, 2004, and that the allegations in support of the motion as
to evidence received in the hearing are not factual, including the
contention that the employer's changes in administration of Title I
were motivated solely by economic concerns or that staffing levels
were in fact reduced for bargaining unit members involved in Title
I.  The employer further contends it would be prejudiced if the
hearing were to be reopened where there are no facts showing the
union has either new evidence to present which it could not have
presented at the hearing had it utilized reasonable efforts, or
evidence to present which it could not have known of because of
factual misrepresentations by the employer.


WAC 391-45-070(2) reads in relevant part:

     Motions to amend complaints shall be subject to the following
     . . . .
     (c) After the opening of an evidentiary hearing, amendment may
     only be allowed to conform the pleadings to evidence received
     without objection, upon motion made prior to the close of the
     evidentiary hearing.

Also in relevant part, WAC 391-45-270 reads as follows:

     . . . .
     (2) Once a hearing has been declared closed, it may be reopened
     only upon the timely motion of a party upon discovery of new
     evidence which could not with reasonable diligence have been
     discovered and produced at the hearing.


No citation of authority is required to support the proposition that
the evidentiary hearing in this case closed upon the Examiner's
statement to that effect on July 14, 2004, after both parties rested
their cases and failed to respond affirmatively to the question
posed to them as to whether there was anything further for the
hearing.  The only proper time to entertain a motion to amend the
complaint to conform to the evidence is prior to the close of the
hearing under the express provisions of WAC 391-45-070(2)(c).  The
union manifestly failed to comply with this requirement.

The union has also failed to establish a basis for reopening the
hearing.  In support of its motions, the union unequivocally states
the sole purpose for reopening the hearing is for it to have an
opportunity to make a motion to conform its complaint to the
evidence adduced at the hearing.  A hearing may be reopened only to
admit newly discovered evidence which could not have been discovered
and presented at the hearing with the exercise of reasonable
diligence.  In this case, the union is attempting to reopen the
hearing for the sole purpose of rectifying its failure to make a
motion to conform its complaint to the evidence in a timely fashion,
i.e.,  prior to the close of the hearing.



The motion to amend complaint and conditional motion to reopen the
hearing are both DENIED.

Issued at Olympia, Washington, this  22nd  day of July, 2004.


                    VINCENT M. HELM, Examiner