§ 1-07 — Proceedings Before the Board of Collective Bargaining

§ 1-07 Proceedings Before the Board of Collective Bargaining.

(a) Definition. Board. As used in this section, the term "Board" means the Board of Collective Bargaining. (b) Types of proceedings before the Board. A party may file a petition commencing a proceeding pursuant to paragraphs (1) through (4) of this subsection. When appropriate, a party may combine proceedings brought pursuant to paragraphs (2) and (4) in a single petition. The combined petition must be properly titled, must contain separately labeled sections for each proceeding, and each section must comply with the requirements set forth in 61 RCNY § 1-07(c). (1) Interpretation of and compliance with statute. A public employer or public employee organization which is a party to a disagreement as to the application or interpretation of the statute may petition the Board to consider such disagreement and report its conclusions to the parties and the public. (2) Scope of collective bargaining. (i) A public employer or certified or designated public employee organization which is party to a disagreement as to whether a matter is within the scope of collective bargaining, including a claim of practical impact under § 12-307(b) of the statute, or under an applicable executive order, or pursuant to a collective bargaining agreement, may petition the Board for a final determination thereof. Pleadings responsive to a scope of bargaining petition must be filed and served in accordance with 61 RCNY § 1-07(c)(3), (4), and (5). (ii) A scope of collective bargaining petition filed after the appointment of an impasse panel has been authorized in accordance with 61 RCNY § 1-05(f) must be filed within the time provided in 61 RCNY § 1-05(g). (3) Grievance arbitration. A public employer or certified or designated public employee organization which is party to a disagreement as to whether a matter is a proper subject for the grievance and arbitration procedure established pursuant to § 12-312 of the statute or under an applicable executive order or pursuant to a collective bargaining agreement may petition the Board for a final determination thereof. The petition must be filed within the time provided in 61 RCNY § 1-06(c), and responsive pleadings must follow the procedures set forth in 61 RCNY § 1-07(c)(3), (4), and (5). (4) Improper practices. One or more public employees or any public employee organization acting on their behalf or a public employer may file a petition alleging that a public employer or its agents or a public employee organization or its agents has engaged in or is engaging in an improper practice in violation of § 12-306 of the statute and request that the Board issue a determination and remedial order. The petition must be filed within four months of the alleged violation and must be on a form prescribed by the Office of Collective Bargaining. (c) Pleadings, Procedures and Determinations. (1) Petition – contents; service and filing. (i) Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), a petition filed pursuant to 61 RCNY § 1-07(b) must be verified and must contain: (A) The name, address, telephone number, and email address of the petitioner; (B) The name, address, and telephone number of the respondent; (C) The specific sections of the statute alleged to have been violated; (D) A clear and concise statement, in numbered paragraphs, of the facts constituting the claim under 61 RCNY § 1-07(b). The statement must include the nature of the controversy and specify any provisions of the contract, executive order, or collective bargaining agreement involved; a copy of the provisions should be provided. If the controversy involves an alleged improper practice, the statement must include but not be limited to the names of the individuals involved in the particular act specifically alleged and the date, time, and place of occurrence of each particular act alleged. The statement may be supported by affidavits, documents, and other evidence that may be relevant and material but may not consist solely of such attachments, and any attachments or exhibits must be specifically identified and referred to in the petition; (E) An argument with citations to legal authority in support of the claims asserted. The argument may be included either in the petition or in a separate memorandum of law; (F) A statement of the relief requested. (ii) Unless e-filed pursuant to 61 RCNY § 1-12(e)(2), a copy of the petition must be served upon each respondent and must be filed, with proof of service, with the Board. (iii) The public employer shall be made a party to any improper practice charge pursuant to § 12-306(d) of the statute and must file responsive pleadings in accordance with 61 RCNY § 1-07(c)(3) and (5). (iv) Unless e-filing pursuant to 61 RCNY § 1-12(e)(2), a petition filed pursuant to 61 RCNY § 1-07(b) against a public employer or a public employee organization must be served upon the designated agent of the public employer or public employee organization. A listing of designated agents shall be maintained at the Office of Collective Bargaining and on its website. The public employer and/or public employee organization must keep the Office of Collective Bargaining informed of their current designated agent, including their address and email address. Service upon a designated agent listed on the Office of Collective Bargaining's designated agent list shall be deemed proper service. (2) Executive Secretary Review of Improper Practice Petitions. (i) Within 10 business days after a petition alleging improper practice is filed, the Executive Secretary shall review the petition to determine whether the facts as alleged may constitute an improper practice as set forth in § 12-306 of the statute. If, upon such review, the Executive Secretary determines that the petition is not, on its face, untimely or insufficient, notice of such determination shall be served upon the parties by email or by regular mail. The determination shall not constitute a bar to defenses of untimeliness or insufficiency which are supported by probative evidence available to the respondent. If it is determined that the petition, on its face, does not contain facts sufficient as a matter of law to constitute a violation, or that the alleged violation occurred more than four months prior to the filing of the charge, the Executive Secretary may issue a decision dismissing the petition or send a deficiency letter. Copies of such decision or deficiency letter shall be served upon the parties by email or by certified mail. (ii) Within 10 business days after service of a decision of the Executive Secretary dismissing an improper practice petition as provided in this subdivision, the petitioner may file with the Board a written statement setting forth an appeal from the decision with proof of service upon all other parties. The statement must set forth the reasons for the appeal. (iii) Within 10 business days after service of a deficiency letter from the Executive Secretary as provided in this subdivision, the petitioner may serve an amended petition upon each respondent and file the amended petition, with proof of service, with the Board. The amended petition shall be deemed filed from the date of the original petition. The petitioner may also withdraw the charge. If the petitioner does not seek to amend or withdraw the charge, but instead wishes to file objections to the deficiency letter, the petitioner may file with the Executive Secretary a written statement setting forth the basis for the objection with proof of service upon all other parties within 10 business days after service of the deficiency letter. If the petitioner does not timely file an amendment or otherwise respond, the charge will be deemed withdrawn and the matter closed. Upon review of the amended petition or written objection filed by the petitioner, the Executive Secretary shall issue either a notice that the petition is not on its face untimely or insufficient or a written decision dismissing the improper practice petition. (3) Answer – contents; service and filing. (i) Respondent's answer to the petition must be verified and must contain: (A) Specific admissions or denials of the allegations in the petition in numbered paragraphs which correspond with those in the petition; (B) A statement of facts with numbered paragraphs setting forth the nature of the controversy. The statement may be supported by affidavits, documents, and other evidence that may be relevant and material but may not consist solely of such attachments, and any attachments or exhibits shall be specifically identified and referred to in the answer; (C) Any defenses as may be appropriate; (D) An argument with citations to legal authority in support of the defenses raised. The argument may be included either in the answer or in a separate memorandum of law. (ii) Within 10 business days after service of the petition, or, if the petition contains allegations of improper practice, within 10 business days of the service of the notice of finding by the Executive Secretary, pursuant to 61 RCNY § 1-07(c)(2)(i) or (iii), that the petition is not, on its face, untimely or insufficient, respondent must serve its answer upon petitioner and any other party respondent. The answer must be filed, with proof of service, with the Board. When special circumstances exist that warrant an expedited determination, it shall be within the discretion of the Director or the Director's designee to order respondent to serve and file an answer within less than 10 business days. (4) Reply – contents; service and filing. Within 10 business days after service of respondent's answer, petitioner may serve and file a verified reply which must contain admissions and denials of any facts alleged in the answer. Additional facts or new matters alleged in the answer shall be deemed admitted unless denied in the reply. The reply must be limited to a response to specific facts or arguments alleged in the answer, and the Board may disregard new facts or new arguments raised. When special circumstances exist that warrant an expedited determination, the Director or the Director's designee may order petitioner to serve and file its reply within less than 10 business days. A copy of the reply must be served on each respondent and must be filed, with proof of service, with the Board. (5) Briefs – service and filing. Briefs must be filed and served simultaneously with the corresponding petition, answer, or reply, unless prior permission has been granted by the Director or the Director's designee. (6) Case conferences and mediation. (i) At any time after a petition has been served and filed pursuant to 61 RCNY § 1-07(b), the Director's designee may, on notice, schedule a case conference to discuss factual, substantive, or procedural matters. Unless special circumstances exist that warrant an expedited case conference, the conference shall not be held prior to the filing of all pleadings or less than 10 business days from the date of scheduling. Absent good cause shown, the failure of a party to appear at a case conference may constitute grounds for dismissal of the absent party's pleading. (ii) In any proceeding commenced pursuant to 61 RCNY § 1-07(b), the Deputy Director may require the parties to attend one mediation session to explore the possibility of a voluntary resolution of their disputes. After the first mediation session, subject to the parties' agreement or joint request, additional mediation sessions may be scheduled. The scheduling of a mediation session may not by itself toll any time limitations under these rules or require the adjournment of the filing of a pleading, a hearing, or other proceeding. (7) Amendments and withdrawals. After a hearing and upon good cause shown, the trial examiner may permit a party to amend a pleading to conform to the evidence. The request to amend shall be on notice to all parties. (8) Determination – decision. After issue has been joined, the Board may decide the dispute on the papers filed, may direct that oral argument be held, may direct a hearing before a trial examiner, or may make such other disposition of the matter as it deems appropriate and proper. (d) Injunctive relief for a claim of improper practice. (1) Applications for injunctive relief. A party filing an improper practice petition pursuant to 61 RCNY § 1-07(b)(4) may further petition the Board to obtain or to authorize the application for injunctive relief in the Supreme Court, New York County, in accordance with the provisions of § 209-a(5) of the New York Civil Service Law. (2) Petition – contents. A petition for injunctive relief filed pursuant to 61 RCNY § 1-07(d)(1) must be verified and must contain: (i) The name, address, telephone number, and email address of the petitioner; (ii) The name, address, and telephone number of the respondent; (iii) The specific sections of the statute alleged to have been violated; (iv) A clear and concise statement, in numbered paragraphs, of the facts demonstrating that: (1) there is reasonable cause to believe an improper practice has occurred; and (2) immediate and irreparable injury, loss or damage will result, thereby rendering a resulting judgment on the merits ineffectual, and necessitating the maintenance of, or return to, the status quo in order to provide meaningful relief. The statement must include but not be limited to the names of the individuals involved in the particular act specifically alleged and the date, time, and place of occurrence of each particular act alleged. The statement may be supported by documents and other evidence that may be relevant and material but may not consist solely of such attachments, and any attachments or exhibits must be specifically identified and referred to in the petition; (v) Affidavit(s) stating, in a clear and concise manner: (1) those facts personally known to the deponent that constitute the alleged improper practice, the date of the alleged improper practice, the alleged injury, loss, or damage arising from it, and the date when the alleged injury, loss, or damage occurred or will occur; and (2) those facts demonstrating why the alleged injury, loss, or damage is immediate and irreparable, and will render a resulting judgment on the merits of the improper practice charge ineffectual if injunctive relief is not granted, and indicating why there is a need to maintain or return to the status quo in order for the Board to provide meaningful relief; (vi) An argument with citations to legal authority on the issues underlying the claims of improper practice and irreparable harm to support the application for injunctive relief. The argument may be included either in the petition or in a separate memorandum of law; (vii) A statement of the relief requested; (viii) A copy of the underlying improper practice petition. (3) Petition – service and filing. Filing may be completed by personal service, email, or e-filing using the Office of Collective Bargaining's e-filing system. If filing is completed in person, an original and three copies of each petition, with proof of service, must be filed with the Board, in addition to a copy which must be filed by email at the address provided on the Office of Collective Bargaining's website. Due to the expedited nature of a proceeding seeking injunctive relief, service by mail shall not be permitted. A copy of the petition for injunctive relief must be served: (i) personally upon the designated agent of the respondent(s) at or after the time the improper practice petition is served; and (ii) by email on the designated agent of the respondent. When the respondent is a public employer, a copy of the petition for injunctive relief must also be served personally on the Mayor's Office of Labor Relations. No petition for injunctive relief shall be accepted for filing unless it appears that both the improper practice petition and the petition for injunctive relief have been served personally on the designated agent of the respondent. (4) Answer – contents. Respondent's answer to the injunctive relief petition must be verified and must contain: (i) Specific admissions or denials of the allegations of the petition in numbered paragraphs which correspond with those in the petition; (ii) A statement of facts with numbered paragraphs setting forth the nature of the controversy. The statement may be supported by affidavits, documents, and other evidence that may be relevant and material but may not consist solely of such attachments, and any attachments or exhibits must be specifically identified and referred to in the answer; (iii) Any defenses, including defenses that could be rightfully raised in answer to the underlying improper practice petition. The failure to assert a defense in the answer to the petition for injunctive relief shall not preclude the respondent from asserting any defenses to the underlying improper practice petition; (iv) An argument with citations to legal authority in support of the answer to the application for injunctive relief. The argument may be included either in the answer or in a separate memorandum of law. (5) Answer – service and filing. Within three business days after service of an injunctive relief petition, the respondent must serve its answer upon petitioner and any other party respondent and must file the answer, with proof of service, with the Board. The answer must be served and filed in the same manner as prescribed in 61 RCNY § 1-07(d)(3). This section shall not be construed to shorten the respondent's time to answer the underlying improper practice petition. (6) Reply – service and filing. A reply is not required; any new facts alleged in the response will be deemed denied by the petitioner. If a reply is filed, it must be verified and must contain admissions and denials of any facts alleged in the answer. The reply must be limited to a response to specific facts or arguments alleged in the answer, and the Board may disregard new facts or new arguments raised. The reply must be served and filed, with proof of service, before 12:00 NOON on the fourth business day after filing of the injunctive relief petition. The reply must be served and filed in the same manner as prescribed in 61 RCNY § 1-07(d)(3). (7) Review and determination by the Board – meetings by telephone. Upon receipt of a properly served and filed petition for injunctive relief, the Director shall notify the Board and propose a time and date for a special meeting to consider the petition. Within 10 business days after a petition is filed, the Board shall determine whether the charging party has made a sufficient showing in accordance with the provisions of § 209-a(5) of the New York Civil Service Law. The special meeting may be conducted by telephone, provided that all members who are available by telephone are joined as parties to the call. The quorum and voting requirements for any meeting by conference call shall be as provided in § 12-310 of the statute. After appropriate deliberation, the Board shall vote and issue a determination as to whether the charging party has made a sufficient showing that a petition for injunctive relief to the court is warranted. The determination shall be served on the parties by email and by certified mail. (8) Petition in the Supreme Court in New York. If the Board determines that the charging party has made a sufficient showing in accordance with the provisions of § 209-a(5) of the New York Civil Service Law, the Board may petition the Supreme Court, New York County, upon notice to all parties, for the necessary injunctive relief, or, in the alternative, issue an order permitting the charging party to seek injunctive relief in the court, in which case the Board must be joined as a necessary party. (9) Expedited scheduling, hearing, and disposition of the underlying improper practice petition. In conformity with the mandates of § 209-a(5) of the New York Civil Service Law, any improper practice case in which the Supreme Court has granted injunctive relief shall be given preference in scheduling, hearing and disposition over all other types of matters pending before the Board. The Board shall conclude the hearing process and issue a decision on the merits within the time prescribed by § 209-a(5) of the New York Civil Service Law. In order to effectuate this statutory preference and time limitation, unless the parties stipulate in writing to waive the statutory period within which the Board must render its decision on the merits, the following procedures will be enforced: (i) The time provisions set forth in 61 RCNY § 1-07 for the filing of pleadings and briefs will be strictly enforced. Under no circumstances will requests for extensions of time to serve and file pleadings and/or briefs, or requests to adjourn scheduled hearing dates, be granted; (ii) When, in the judgment of the Office of Collective Bargaining, material questions of fact are raised, a hearing will be scheduled to commence no later than 10 business days after service of a copy of the order of the court with notice of entry; (iii) Once a hearing is commenced, it shall continue on consecutive business days until it is concluded; but in no event shall the hearing continue beyond a date 15 business days after service of a copy of the order of the court with notice of entry; (iv) Post-hearing briefs must be served and filed no later than 10 business days after the last hearing date; (v) After the record is closed, the trial examiner shall prepare a report and/or draft decision which shall be submitted to the Board for its consideration. The Director may call for a special meeting by telephone conference call, in accordance with the procedures set forth in 61 RCNY § 1-07(d)(7), whenever necessary for the Board to render a decision within the time prescribed by § 209-a(5) of the New York Civil Service Law. Copies of the decision shall be served on the parties by email and certified mail. (10) Notification to the court. The Board shall promptly forward notice of its determination, together with a copy of the decision of the Board, to the court which issued the order granting injunctive relief. (Amended City Record 10/24/2018, eff. 11/23/2018)