§ 1-02 — Representation Proceedings

§ 1-02 Representation Proceedings.

(a) Definition. Board. As used in this section, the term "Board" means the Board of Certification. (b) Petition – filing. A petition for the investigation of a question or controversy concerning the representation of public employees may be filed by a public employer, public employees, or their representative. The petition must be filed on a form prescribed by the Office of Collective Bargaining and must be in writing and signed. (c) Petition by public employees or their representatives – contents; proof of interest. (1) Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), a petition filed by public employees or their representatives must contain: (i) The name, address, telephone number, and email address of petitioner; (ii) The name, address, and telephone number of the public employer; (iii) The titles and the approximate number of employees in the units claimed to be appropriate; (iv) An allegation that a question or controversy exists concerning representation and a concise statement of the nature thereof; (v) The names, addresses, and telephone numbers of any other public employee organizations, known to petitioner, which claim to represent employees in the alleged appropriate bargaining units, and the expiration date of any existing collective bargaining agreement; (vi) A request that the Board certify or designate the petitioner as the exclusive bargaining representative of the employees in the appropriate units or for other appropriate action. (2) Simultaneously with the filing of the petition, the petitioner must: (i) In the case of a petition for certification, submit to the Board evidence that at least 30 percent of the employees in the appropriate unit, or in each appropriate unit, desire petitioner to represent them for the purposes of collective bargaining; (ii) In the case of a petition for designation as the collective bargaining representative of a unit for the purposes specified in paragraphs two, three or six of § 12-307(a) of the statute, submit evidence that it is the certified representative of a bargaining unit which includes more than 50 percent of the employees in the unit for which designation is sought. (3) If such evidence is not timely submitted, the Board may dismiss the petition forthwith. Sufficiency of interest shall not be litigated. (d) Petition by public employer – contents. Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), the petition must contain: (1) The name, address, telephone number, and email address of the petitioner; (2) A general description of petitioner's function and the number of its employees; (3) The titles and the approximate number of employees in the units claimed to be appropriate; (4) An allegation that a question or controversy exists concerning representation and a concise statement setting forth the nature thereof, and, in any case when a public employer entertains a good faith doubt concerning the continued majority status of a certified union, an allegation to that effect with a concise statement of the facts upon which the doubt is based; (5) The names, addresses, and telephone numbers of the public employee organizations which claim to represent the employees in the alleged unit(s); (6) A request that the Board investigate the alleged question or controversy. (e) Decertification petition – contents; proof of interest. (1) A petition alleging that a certified or designated employee organization is no longer the representative of the public employees in an appropriate bargaining unit may be filed by a public employee or group of public employees, or their representative. Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), the petition must be in writing and signed and must contain: (i) The name, address, telephone number, and email address of petitioner; (ii) The name, address, and telephone number of the certified or designated employee organization; (iii) A description of the bargaining unit(s) and the approximate number of employees in the unit(s); (iv) The expiration date of any contract covering employees in the unit(s); (v) An allegation that the certified or designated employee organization no longer is the representative of the employees in the appropriate unit(s), and any other relevant and material facts. (2) (i) Simultaneously with the filing of a decertification petition, the petitioner must submit to the Board evidence that at least 30 percent of the employees in each unit do not desire to be represented by the certified employee organization; (ii) Simultaneously with the filing of a petition for revocation of a designation as collective bargaining representative of a unit for the purposes specified in paragraphs two, three or six of § 12-307(a) of the statute, the petitioner must submit to the Board evidence that the designated representative is not the certified representative of the bargaining unit or units which include more than 50 percent of the employees in the unit which it has been designated to represent; (iii) If such evidence is not timely submitted, the Board may dismiss the petition. Sufficiency of interest shall not be litigated. (f) Proof of interest – current. Designation and authorization cards and petitions, submitted as proof of interest under 61 RCNY § 1-02(c)(2), (e)(2) or (l), must be dated and signed by the employees, by hand or electronically, not more than seven months prior to the commencement of the proceeding before the Board. Proof of interest shall be based on the payroll immediately preceding the date of filing of the petition, unless the Board deems such period to be unrepresentative. (g) Petitions – contract bar; time to file. A valid contract between a public employer and a public employee organization will bar the processing of any petition filed outside of the window periods described below. The time period for filing a petition for certification, designation, decertification or revocation of designation pursuant to 61 RCNY § 1-02(c), (d), or (e) of these rules is: for a contract of no more than three years' duration, a petition can be filed not less than 150 or more than 180 calendar days before the contract's expiration date; for a contract of more than three years' duration, a petition can be filed not less than 150 or more than 180 calendar days before the contract's expiration date, or not less than 150 or more than 180 calendar days before the end of the third year of that contract. No petition for certification, decertification or investigation of a question or controversy concerning representation may be filed after the expiration of a contract. However, if a window period would be eliminated or shortened, such as when a public employer and a public employee organization sign a successor contract after that contract has expired or less than 180 days before it expires, then a petition for certification, decertification or question or controversy concerning representation may be filed in the 30-day period following the date the successor contract is signed by all parties. Moreover, if the Board finds that unusual or extraordinary circumstances exist, such as when there is reason to believe that a recognized or certified employee organization is defunct or has abandoned representation of the employees in the unit for which it was recognized or certified, the Board may process a petition otherwise barred by this rule. (h) Petitions – notice of filing. Upon the filing of a petition pursuant to the provisions of 61 RCNY § 1-02, the Office of Collective Bargaining will publish the notice on its website and in the City Record. The notice shall include the date the petition was filed, the name and address of the petitioner, the name and address of the public employer, and a statement of the action sought. The notice will be prepared by the Board and delivered to the employer, which must post or distribute the notice in the manner in which it customarily communicates information to employees. If posted, notices must remain for a minimum of ten business days. Within 20 business days of service of the notice, the public employer must provide the Director of Representation with a certification that the notice has been posted or distributed. (i) Responses – time to file. For petitions filed pursuant to 61 RCNY § 1-02(c), (d), or (e) the public employer or an employee organization certified to represent the existing bargaining unit must file its written submission with the Director of Representation within 20 business days after service of the notice of filing of a petition pursuant to 61 RCNY § 1-02, with proof of service upon all other parties, setting forth its position on the petition. As circumstances require, the request of the public employer or employee organization for an extension of time to file its written submission, on notice to all parties, shall not be unreasonably denied. When it is the public employer's position that any of the petitioned for titles and employees are managerial or confidential, in its written submission the employer must comply with the requirements of 61 RCNY § 1-02(v) insofar as they require a statement of the factual basis of the allegation that the affected titles and employees are managerial or confidential, as the case may be. In the absence of any response from the public employer or an employee organization certified to represent the existing bargaining unit within the time specified above, the Board shall proceed with processing the petition. For petitions filed pursuant to 61 RCNY § 1-02(c) and (e), responses filed by an employer must contain an alphabetized list of all the employees in the unit(s) sought. (j) Investigation. (1) In its investigation of a question or controversy concerning representation, the Board may conduct informal conferences or hearings, may direct an election or elections, or use any other suitable method to resolve the question concerning representation. (2) If, after a petition has been filed pursuant to 61 RCNY § 1-02 and at any time prior to the close of the record, it appears to the Director of Representation that no further proceedings are warranted because the petition does not raise a question concerning representation or is otherwise insufficient due to untimeliness, contract or certification bar or lack of a sufficient showing of interest, the Director of Representation may dismiss the petition by administrative action, and will so advise the parties in writing, setting forth the grounds for dismissal. (3) Within 10 business days after service of a letter dismissing a petition, the petitioner may obtain review of the dismissal by filing with the Board a statement in writing setting forth the reasons for the appeal together with proof of service thereof upon all other parties. A response by a non-moving party may be filed within 10 business days of service of the appeal. (k) Appropriate units – determination. In determining appropriate bargaining units, the Board will consider, among other factors: (1) Which unit will assure public employees the fullest freedom in the exercise of the rights granted under the statute and the applicable executive order; (2) The community of interest of the employees; (3) The history of collective bargaining in the unit, among other employees of the public employer, and in similar public employment; (4) The effect of the unit on the efficient operation of the public service and sound labor relations; (5) Whether the officials of government at the level of the unit have the power to agree or make effective recommendations to other administrative authority or the legislative body with respect to the terms and conditions of employment which are the subject of collective bargaining; (6) Whether the unit is consistent with the decisions and policies of the Board. (l) Determination of representatives on consent. Subject to the approval of the Director of Representation, the parties to a representation proceeding may waive a hearing and agree in writing on the method by which the Board shall determine the question of representation. (m) Voluntary recognition – notification. (1) Filing of notification. When the public employer proposes voluntarily to recognize a public employee organization for the representation of public employees pursuant to § 12-303(l)(2) of the statute, the employer must file a signed written notification with the Board. (2) Notification of proposed recognition by public employer – contents. Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), the notification must contain: (i) The name, address, telephone number, and email address of the public employer; (ii) A general description of the public employer's function and the number of its employees; (iii) The titles and the approximate number of employees in the units which have been recognized; (iv) A statement that no question or controversy is known to exist concerning representation thereof; (v) The names, addresses, and telephone numbers of the public employee organization(s) which has been recognized to represent the employees in the units; (vi) A request that the certification held by the public employee organization(s) be amended, if applicable, to reflect the voluntary recognition. (3) Notification of proposed recognition – notice of filing. Upon the filing of a notification of proposed recognition pursuant to the provisions of 61 RCNY § 1-02, the Office of Collective Bargaining will publish the notice on its website and in the City Record. The notice shall include the date the notification of recognition was filed, the name and address of the public employer, the name and address of the public employee organization, and a statement of the action sought. The notice will be prepared by the Board and delivered to the employer, which must post or distribute the notice in the manner by which it customarily communicates information to employees. If posted, notices must remain for a minimum of 10 business days. Within 20 business days of service of the notice, the public employer must provide the Director of Representation with a certification that the notice has been posted or distributed. (4) Objection to proposed recognition. An employee, a group of employees, or a public employee organization may file a statement with the Board objecting to the proposed recognition and alleging that a question or controversy exists regarding representation. The statement of objection, if filed in a timely manner within the period of objection, will preclude a proposed recognition from becoming effective. If an objection is timely filed, the notice of voluntary recognition will be deemed a petition pursuant to 61 RCNY § 1-02(d) and will be processed accordingly. (5) Period of objection. A public employee or employee organization objecting to the recognition must file its statement of objection, with proof of service on the public employer and public employee organization, setting forth the basis for its opposition within 10 business days of publication of the notice of filing in the City Record. (n) Elections – participation; eligibility. (1) If the Board determines, as part of its investigation, to conduct an election, it shall determine who may participate in the election and appear on the ballot, the form of the ballot, the employees eligible to vote in the election, and the rules governing the election. An intervening public employee organization, other than a certified public employee organization, shall not be entitled to appear on the ballot except upon a showing of interest, satisfactory to the Board, of at least 10 percent of the employees in the unit found to be appropriate. (2) When a public employer objects to the addition of supervisory or professional employees to a unit which contains non-supervisory employees or nonprofessional employees pursuant to § 12-309(b)(1) of the statute, an election must be held to determine whether a majority of supervisory or professional employees voting in an election are in favor of such a unit. The electorate of such an election must consist solely of such supervisory or professional employees sought to be added to such a unit. When there is a dispute as to the eligibility of the employees in question or the appropriateness of the proposed unit, those issues shall be resolved by the Board prior to the holding of an election under this subdivision. (3) Except upon consent of the parties, no election shall be conducted in any bargaining unit or any subdivision thereof within which a valid election has been held in the preceding 12-month period. (o) Elections – notice. Prior to the election, the Board will prepare a notice of election which will specify the time, place, and manner in which voting will be conducted, titles of employees in the appropriate unit in which the election is to be conducted, rules concerning eligibility to vote, the form and content of the ballot, and such additional information and instructions as the Board may determine. The public employer must post or distribute the notice in the manner by which it customarily communicates information to employees. If posted, notices must remain until the election has been concluded. (p) Elections. (1) Conduct. All elections must be by secret ballot and must be conducted under the supervision of an agent of the Board in the manner determined by the agent. (2) Observers. Each party may be represented by observers selected in accordance with such limitations and conditions as the Board may prescribe. (3) Challenges. An observer or the Board's agent conducting the election may challenge for good cause the eligibility of any person to vote in the election. Challenged ballots shall be impounded pending Board decision thereon. (4) Count of ballots. After the polls have been closed, the ballots shall be counted by the Board's agent in the presence of the observers. (5) Report of count. Upon the conclusion of the election, the Board or its agent shall prepare and serve upon the parties a report showing the results of the election. (q) Inconclusive elections; runoff. In any election in which three or more choices (including "no representative") appear on the ballot, if no choice receives a majority of the valid ballots cast, and the valid ballots cast for "no representative" total less than 50 percent of the valid ballots cast, the Board may conduct a runoff election in which only the two public employee organizations which received the largest number of valid votes shall appear on the ballot, and the choice of "no representative" shall be omitted from the ballot. (r) Post-election procedure – objections; challenges. Within seven business days after service of the report of count, any party may serve on all other parties and file with the Board (with proof of service) objections to the election, to conduct affecting the results of the election, or to the report of count. The objections must be verified and must contain a concise statement of the facts constituting the grounds of objections. The Board may direct oral argument before it, or direct a hearing, or otherwise investigate and make its determination with respect to the objections or any challenged ballots. (s) Certification – determination of majority; no strike affirmation; disqualification. (1) Upon completion of its investigation of any petition filed pursuant to 61 RCNY § 1-02, the Board shall certify the name of the representative, if any, which has been designated by a majority of the employees in the appropriate bargaining unit or, if an election is held, which has been selected by the majority of the employees casting valid ballots in the election, or make other disposition of the matter. Notice of certifications issued by the Board shall be published in the City Record. (2) No public employee organization shall be certified as an exclusive bargaining representative unless it has filed with the Board a no strike affirmation as required by the New York State Public Employees Fair Employment Act. (3) An employee organization shall not be eligible for certification as an exclusive bargaining representative if it: (i) discriminates with regard to the terms and conditions of membership because of race, color, creed, religion, disability, gender, sexual orientation, age, or national origin, or (ii) engages in or advocates the violent overthrow of the government of the United States or any state or any political subdivision thereof. (t) Certification; designation – life; modification. When a representative has been certified by the Board, the certification remains in effect for one year from the date of the certification and until the Board determines, after a secret ballot election conducted in a proceeding under 61 RCNY § 1-02(c), (d), or (e), that the certified employee organization no longer represents a majority of the employees in the appropriate unit. When a representative has been designated by the Board to represent a unit for the purposes specified in paragraphs two, three or six of § 12-307(a) of the statute, the designation remains in effect for one year from the date of designation and until the Board determines that the designated employee organization no longer represents a majority of the employees in the appropriate unit. Notwithstanding the above bar on challenging a certification within one year of its issuance, in any case when unusual or extraordinary circumstances require, such as when there is reason to believe that a recognized or certified employee organization is defunct or has abandoned representation of the employees in the unit for which it was recognized or certified, the Board may modify or suspend, or may shorten or extend the life of the certification or designation. (u) Amendments of certifications – petition; notice of filing; response; disposition by the Board. (1) A public employer or the certified bargaining representative of a unit may file a petition requesting amendment of a certification to add and/or delete titles or to reflect that the certified bargaining representative has changed its name. The petition must be in writing, signed, and filed with the Board. If a proposed amendment raises a question concerning the majority status of the certified bargaining representative, the petition must be filed pursuant to 61 RCNY § 1-02(c). (2) Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), a petition for amendment of certification must contain: (i) The name, address, and telephone number of the certified bargaining representative of the unit(s) involved; (ii) A description of the bargaining unit(s) involved and the date of certification of the bargaining representative; (iii) All titles involved, the number of employees in each title, and the name of each public employer and/or municipal agency at which the employees work; (iv) A request that the bargaining representative's certification be amended to reflect the changes recited in the petition. (3) Upon the filing of a petition pursuant to this subdivision, the Office of Collective Bargaining will publish a notice of the filing on its website and in the City Record. The notice shall include the date the petition was filed, the names and addresses of the parties and the changes requested by the petition. The notice shall be prepared by the Board and delivered to the employer, which must post or distribute the notice in the manner by which it customarily communicates information to employees. If posted, notices must remain for a minimum of 10 business days. Within 20 business days of service of the notice, the public employer must provide the Director of Representation with a certification that the notice has been posted or distributed. (4) A public employer or employee organization opposing the petition must file its response, with proof of service on the other parties, setting forth the basis for its opposition within 20 business days of service of the notice of filing. (5) In the absence of a response filed by a public employer or employee organization opposing the petition or in the absence of defects revealed by the Board's investigation, the Board shall issue the amendment. (6) When a petition filed under this subdivision is contested, the Board may conduct informal conferences or hearings, may direct an election or elections, or use any other suitable method to resolve the question concerning representation. (v) Petition for designation of employees as managerial or confidential – contents; time to file; notice; intervention; investigation; determination. (1) A petition for the designation of certain of its employees as managerial or confidential may be filed by a public employer. The petition must be in writing, signed, and filed with the Board. Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), the petition must contain: (i) The name, address, telephone number, and email address of petitioner; (ii) A general description of petitioner's function; (iii) The titles of employees covered by the petition and the number of employees in each; (iv) A statement as to whether any of the titles affected by the petition has ever been included in a collective bargaining unit for purposes of negotiation with petitioner; whether any of them has been represented at any time by a certified employee organization; and the current collective bargaining status of each title; (v) The expiration date of any current collective bargaining agreement covering employees affected by the petition; (vi) A request that the titles and employees affected by the petition be designated either managerial, confidential, or both, as the case may be; (vii) A statement of the basis of the allegation that the titles and employees affected by the petition are managerial and/or confidential; (viii) The name, address, and telephone number of any certified employee organization which represents persons affected by the petition. (2) A petition for the designation of employees as managerial or confidential may be filed: (i) Not less than five or more than six months before the expiration date of the contract covering the employees sought to be designated managerial or confidential; or (ii) During the pendency of a representation proceeding in which the petitioned for unit includes the employees sought to be designated managerial or confidential; or (iii) In the discretion of the Board when unusual circumstances are involved. (3) Any employee affected by the petition may apply to the Board for permission to intervene in the proceeding following the general procedures prescribed in 61 RCNY § 1-12(k). The application must be made by a motion addressed to the Board and contain the basis for the request for permission to intervene, including a statement as to whether intervenor appears in support of or in opposition to the petition and a recital of the facts upon which intervenor bases its support or opposition. (4) In its investigation of a question as to the managerial or confidential status of employees, the Board may conduct informal conferences or hearings or use any other suitable method of resolving the matter. (5) Upon completion of its investigation, the Board shall determine whether or not the titles affected by the petition or any of the persons employed in any such title are managerial or confidential and shall communicate its determination to the parties. Notice of such determination shall also be published in the City Record. (6) A determination by the Board made pursuant to this subdivision regarding the managerial or confidential status of a title shall be final and binding and, subject to 61 RCNY § 1-02(v)(2)(iii), the determination shall preclude a petition to represent the title and employees or a petition to designate the title and employees managerial or confidential for a period of two years or until the period specified in 61 RCNY § 1-02(v)(2)(i) above, whichever is later. A petition filed pursuant to this subdivision must include a statement of facts demonstrating such a material change in circumstances subsequent to the Board's prior determination as to warrant reconsideration of the managerial or confidential status of the title or employee. (Amended City Record 10/24/2018, eff. 11/23/2018)