Readopted with
amendments Pub 201.02, effective 1-29-08
Pub 201.02
Unfair Labor Practice Complaint.
(a) Complaints may be filed at any time within 6 months
of the alleged violations. Complaints shall be signed by
the complainant and sworn to before a person authorized
to administer oaths. The complaint shall be accompanied
by the filing fee required by law, which shall be a
prerequisite to the filing of that document. All
complaints shall be filed in accordance with the
document filing procedures set forth in 201.01.
(b) The complaint and
affidavit shall set out:
(1) The name,
address, telephone number, title and affiliation of
the party filing the complaint;
(2) The name, address, telephone number, title and
affiliation of the party against whom the complaint
is filed;
(3) The name, address and telephone number of the
affected employer, if not otherwise named as a party
to the complaint;
(4) A clear and concise statement of the facts
giving rise to the complaint, including the date,
time and place of the occurrence, and the names of
all persons involved in or witnessing the
occurrence, characterizing each particular act in
terms of the specific provision(s) of RSA 273-A:5 or
RSA 273-A:6 alleged to have been violated;
(5) A statement of agreed facts accompanying the
complaint signed by both the complainant and the
respondent; and
(6) A statement setting out the remedies available
to the complainant in addition to the remedies
available under RSA 273-A or 273-C as the case may
be, indicating whether those avenues for relief have
been exhausted and if they have not, the reasons for
not exhausting them.
(c) This information may be provided on an Unfair Labor
Practice Complaint form, copies of which may be obtained
from the board pursuant to Pub 103.02.
(d) The complaint shall
be accompanied by:
(1) An electronic
copy of the current or other applicable collective
bargaining agreement;: or
(2) A copy of the letter of transmittal stating that
the same has been placed on file with the board in
accordance with RSA 273-A:16 or 273-C:14.
(e) At the time the complainant files a complaint, the
complainant shall certify that a copy has been delivered
by electronic and regular mail to all parties named in
the complaint and, if no public employer is named in the
complaint, to the public employer whose employees might
be directly affected by the board's disposition of the
complaint. The complainant shall contact the parties and
involved public employer to obtain electronic and
regular mail address information and shall certify in
its complaint that it has done so. A public employer
shall display copies of any complaint filed by it or
against it or delivered to it at locations where such
employees work not later than the date on which it files
its answer with the board or on which it receives the
answer of the charged party, or not later than 15 days
after the receipt of the complaint if no answer to the
complaint is to be filed.
(f) The complainant shall reference and describe in the
complaint all relevant documents, but shall not attach
to or include with the complaint documents except as
provided in part (d) above. Any and all documents the
complainant or other parties to the proceeding wish to
present to the board shall be identified and listed on
exhibit lists as required elsewhere under these rules
and shall be offered, if at all, as exhibits at hearing
except to the extent otherwise ordered by the board.
(g) If a complaint is alleged to be deficient for lack
of one or more of the criterion of (b), the complainant
may move to amend that complaint to correct the
deficiency. The motion to amend shall be granted in the
interest of administrative economy in order to avoid
duplicative proceedings.
Pub 201.03 Answer. The
respondent shall file an answer to the complaint with
the board and deliver a copy of its answer to the
complainant within 15 days of the date the complaint
is filed. The answer shall contain a clear and concise
statement fairly meeting each allegation in the
complaint, specifically denying or admitting and
explaining each allegation of which the respondent has
knowledge.
Source. #2325, eff 3-28-83; ss by
#3019, eff 5-14-85; EXPIRED: 5-14-91
New. #5679, eff 8-4-93, EXPIRED: 8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
Readopted with
amendments Pub 201.04, effective 1-29-08
Pub 201.04
Amendments and Withdrawals.
(a) With the exception of amendments requested during
the course of a final hearing, all requests for
amendment shall be presented to the board by a
separately prepared and filed motion.
(b)The board shall permit an amendment to the complaint
or to the answer which is filed and requested at least
10 days prior to the date of hearing upon due notice to
all parties.
(c) The board shall allow requests for an amendment
filed less than 10 days prior to the date of hearing,
including requests filed at the conclusion of the
hearing to amend the complaint or answer as necessary to
conform to the evidence, unless the amendment shall
result in unnecessary delay of the proceeding or unfair
prejudice to another party in the proceeding.
(d) When a complaint has been amended, the board shall
provide the respondent with the opportunity to amend the
response or answer.
(e)A complaint may be withdrawn at any time by the
complainant upon written notification to the board and
such withdrawal shall be with prejudice unless the
complaint is reinstituted as set forth in 201.04(f) and
(g).
(f) A party seeking to reinstitute a previously
withdrawn complaint shall file a written motion
containing the reason(s) for the withdrawal and for the
requested reinstatement, and shall state whether the
opposing party agrees to the reinstitution of the
complaint.
(g) The board shall reinstitute a complaint for good
cause shown. Good cause shall include the respondent’s
failure to comply in a timely manner with the material
provisions of a settlement agreement which formed the
basis for the withdrawal of the complaint.
Pub 201.05 Unfair Labor Practice
Hearing.
(a) After the time for filing
answers has passed, the board shall order a hearing to
be held on all contested complaints within 45 days of
the filing of the complaint. Notices of hearings on
the merits shall be delivered at least 10 days prior
to the hearing to all parties named in the complaint
except as this time limit shall be shortened by Pub
201.03. The public employer whose employees might be
directly affected by the board's disposition of the
complaint shall display copies of the notice at
locations where such employees work on the next
working day following receipt of the notice. When it
is necessary for a public employer to display copies
of the notice at diverse locations because potential
bargaining unit members work at locations remote from
the place where the administration of the public
employer is located, copies of the notice shall be
mailed to those remote locations no later than the
next working day following receipt of the notice. The
copies so mailed shall be displayed at those remote
locations on the same day they are received.
Source. #5679, eff 8-4-93 (from Pub
201.03), EXPIRED: 8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
Pub 201.06 Hearing Required.
(a) The board shall conduct hearings
when there are issues of material fact or the parties
wish to be heard on questions of law, either to
address matters of original jurisdiction or to review
the report of a hearing examiner.
(b) Unless otherwise agreed by the parties, the
petitioning or complaining party shall have the burden
of going forward with the case. A party offering a
motion shall have the burden of going forward on the
motion.
(c) In all adjudicative hearings under these rules,
the party asserting the affirmative of a proposition
shall bear the burden of proving the proposition by a
preponderance of the evidence.
Source. #5679, eff 8-4-93, EXPIRED:
8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
Pub 201.07 Scheduling of Hearings;
Notice; Continuances.
(a) All parties whose interests will
be adjudicated at a hearing or whose testimony is
necessary to a full and fair consideration of the
issue to be raised at a hearing shall be given at
least 10 days' notice of the time, place, statutory
references, subject matter of the hearing, their right
to legal counsel at their own expense and legal
authority under which the hearing is to be held by a
notice of hearing.
(b) A copy of the notice shall be
delivered to the public employer whose employees will
be directly affected by the outcome of the hearing.
The employer shall display copies of the notice at its
administrative offices and locations where such
employees work on the next working day following
receipt of the notice. Copies of the notice shall be
mailed to remote locations no later than the next
working day following receipt of the notice. Copies so
mailed shall be displayed at those remote locations
the same day as they are received.
(c) Any party to an adjudicative
proceeding or with pending motions before the board or
a presiding officer shall maintain a current address
and telephone number on file with the board. Notices
mailed by the board by first class mail, postage
prepaid, to the address on file with the board shall
be presumed to have been received by the party to whom
they were directed.
(d) Time limits for the giving of
notice to those parties and individuals who are to
appear at a hearing may be waived by the parties or
shortened from those set forth above by action of the
presiding officer with reasonable notice, if the
pending action, whether a petition or a complaint,
seeks interim relief and alleges matters of
irreparable harm or alleges a violation of RSA
273-A:5, I(f) or 273-A:5, II(e) and the
requesting party has shown a likelihood of prevailing
based on the pleadings.
(e) The procedure for requesting and
obtaining a continuance shall be as follows:
(1) All requests to continue a
hearing shall:
a. Be given in writing to all
parties to the hearing, including the board, at
least 7 calendar days prior to the scheduled
hearing;
b. State the specific reason for the request;
c. State that concurrence to the request has been
sought from the opposing party;
d. State that the represented party has concurred,
objects, consents, or takes no position on the
request;
e. State at least 2 alternative hearing dates that
are acceptable to the parties; and
f. If unable to contact opposing party, describe
all attempts that were made to contact opposing
party.
(2) Upon the filing of a request
for a continuance, per Pub. 201.07 (e) (1), the
presiding officer shall review the pleading and
determine if a compelling need exists to grant the
continuance, such as:
a. A party or a representative
cannot attend due to a medical condition or
unexpected injury.
b. A necessary witness cannot attend and an
appropriate affidavit cannot be substituted for
their presence by consent of the opposing party;
c. A party's counsel or representative has a
previously scheduled arbitration case or mediation
session, or an unexpected conflict with a trial
scheduled in a state or federal court, and the
following apply:
1. No other substitute counsel
or representative is available to serve as a
replacement; and
2. The party's counsel or representative shall
provide the case or docket number to the board;
or
d. Other sufficiently serious circumstances that
preclude a party's availability to attend the hearing;
and
(3) A hearing shall be continued
in the absence of the above process only in an
emergency situation, as determined by the presiding
officer, for reasons such as severe weather, death
in the family, traffic accidents, and illness.
(f) Hearings shall be continued from
day to day, or recessed or adjourned to a later time
or day or to a different place by the presiding
officer giving notice to all parties who were notified
of the original hearing for such reasons as:
(1) The time allotted for the
hearing proved to be insufficient; or
(2) A party, representative,
necessary witness or documentary evidence is
unavailable.
(g) The presiding officer shall
grant a motion to intervene and/or to participate as
amicus curiae; if the party so requesting has
demonstrated that its rights, duties, privileges or
other substantial interests might be affected by the
proceeding or if such intervention would be in the
interests of justice and would not impair the orderly
and prompt conduct of the proceedings.
(h) If a prospective intervener
qualifies to intervene, at the time of intervention or
as becomes appropriate thereafter, the presiding
officer shall limit the intervener's participation so
that it shall not be duplicative of the case being
presented by the complainant/petitioner or the
respondent provided that such limitation shall not be
so extensive as to prevent the intervener from
protecting the interest which was the basis for the
intervention.
(i) The presiding officer shall
grant a motion, whether by a party or by its own
motion, to consolidate a matter or matters for hearing
when the parties are similar, when there are multiple
pleadings or motions seeking the same relief or both.
In the event a party objects to such a consolidation,
the consolidation shall not be finalized until the
objecting party has had an opportunity to be heard on
the basis of its objection
(j) All hearings shall be open to
the public subject to the provisions of RSA 91-A.
Pub 201.08 Communication with Board
on Pending Matters. All communication with the board
on matters pending before it shall be in writing. Oral
communications at hearings or in the presence of the
parties shall be the exception. Copies of all such
written communications shall be delivered to each of
the other parties.
Source. #7187, eff 1-8-00
Pub 201.09 Conflict of Interest.
(a) Board members shall not
participate in any case or proceeding before the board
in which they have real or potential conflicts of
interest. A conflict of interest occurs when a member
has a personal involvement with the case, action,
party or with the same issues being adjudicated. In
the case of a question of conflict arising from the
involvement by a member in the same issue being
adjudicated, it shall involve more than an
intellectual interest in the issue to require
withdrawal of a member. No conflict shall exist if the
board member possesses no more than an intellectual
interest in the issue. A conflict shall be a direct
personal, monetary or professional interest in the
outcome of the decision on that issue.
(b) Conflicts of interest may be raised by:
(1) A board member who perceives
that he/she has a conflict;
(2) The board, upon its own motion; or
(3) Any party to a case before the board at any time
during a proceeding. However, if a party knows facts
constituting a conflict prior to a hearing, the
party shall raise the issue by written motion prior
to the date of hearing at the first opportunity
after discovery.
(c) In the event the issue of a
conflict is raised, the member shall have the
opportunity to disqualify himself or herself from the
hearing. If the member declines because the member
does not believe there is a conflict of interest, and
if the board or a party before the board disagrees
with that decision by the member, the matter shall be
considered by the remaining members hearing the case.
A majority of those remaining members shall determine
whether the member shall be allowed to participate.
(d) No board member shall appear as an advocate before
the board or sit on any case in which his law or labor
relations firm, or an organization in which he is a
member, is a party or represents a party.
(e) Nothing in this section shall prohibit a board
member from being a witness before the board in a case
in which that board member has actual knowledge of
relevant facts. However, if a board member shall act
as such a witness, that board member shall not
participate in deliberations as to the outcome of the
matter being heard.
(f) Pre-hearing submissions to the board shall fully
identify all parties and/or witnesses to be called
before the board so that issues, parties and witnesses
can be known prior to hearing in order to help
identify potential conflicts of interest prior to
hearing.
(g) A board agent or employee acting as a hearing
officer shall withdraw from any hearing upon his/her
own initiative or upon a request of a party for good
cause shown. Good cause shall include a direct
interest in the outcome of the hearing or knowledge of
a party or subject matter of the hearing that could
improperly influence his or her judgment.
Source. #7187, eff 1-8-00
Pub 201.10 Presiding Officer.
All hearings shall be conducted by the presiding
officer who shall have full authority to control the
conduct of the hearing. The presiding officer shall
administer oaths or affirmations to witnesses, see
that a full inquiry is made into all matters in issue
and ensure that a complete record is kept to ensure a
fair consideration by the board on review of all
matters arising in the course of hearing.
Source. #7187, eff 1-8-00
Pub 201.11 Public Docket. The
executive director of the board shall maintain a
current public docket of all matters pending before
the board and of all decisions rendered by the board.
Source. #7187, eff 1-8-00
Pub 201.12 Filing Fee. All
unfair labor practice complaints shall be accompanied
by a filing fee as provided in RSA 273-A:6.
Source. #7187, eff 1-8-00
Top
PART Pub 202
PRE-HEARING
Readopted with
amendments Pub 202.01, effective 1-29-08
Pub 202.01 Pre-Hearing Conference.
(a) In order to facilitate proceedings and encourage
informal disposition of matters pending before it, the
presiding officer may at the request of any party to a
hearing or upon its own motion, conduct one or more
informal pre-hearing conferences prior to the
commencement of a formal hearing in an adjudicative
proceeding.
(b) In the event a pre-hearing conference is scheduled,
the parties shall complete and file a pre-hearing
worksheet within 10 days or such other time period as
ordered by the board.
(c) Each party representative shall include the
following information in their respective worksheet:
(1) The name,
address, telephone number, and e-mail address of the
representative;
(2) Summary of
issue(s) presented for hearing;
(3) Identification of
any procedural issues;
(4) Identification of
witnesses;
(5) Estimate of time
for case presentation;
(6) List of exhibits;
(7) Available dates
for hearing; and
(8) Their signature
certifying that a copy has been provided to the
opposing party.
(d) The purposes of such a conference shall include, but
not be limited to:
(1) Exploring
settlement alternatives;
(2) Identifying,
resolving and simplifying the issues to be raised
and presented at hearing;
(3) Obtaining
stipulations of fact in order to shorten the length
of the hearing;
(4) Identifying
and/or limiting on the number of witnesses to be
called;
(5) Exchanging and
pre-identification of documentary evidence; and
(6) Resolving any
questions pertaining thereto, and any other matters
which will assist and aid in the disposition of the
pending matter.
(e) Parties attending the pre-hearing conference shall
include the counsel or representative of record for the
parties. Attendees shall not be required to include
potential witnesses or interested parties not involved
with the management of the case. Parties shall be
prepared to discuss the issues and evidence involved in
the case in a substantive manner. The board or presiding
officer shall assist the parties as necessary and
appropriate in formulating resolutions to the dispute.
The parties shall come to the conference prepared to
devote a portion of the conference to a serious and
meaningful discussion of possible agreed upon
resolutions to the dispute. Counsel or representatives
shall have authority to engage in such discussions as
well as access to a client by telephone during the
conduct of the conference.
Top
PART Pub
203 CONDUCT OF HEARING
Pub 203.01 Witnesses; Subpoenas.
(a) Upon request therefore or on its
own motion, the presiding officer shall compel the
attendance and deposition of witnesses and the
production of documents by issuing writs and subpoenas
in the name of the board under RSA 273-A:6, IV. The
presiding officer shall administer oaths to witnesses
in the manner provided in RSA 516:19 and RSA 516:20.
In all matters pertaining to witnesses the provisions
of RSA 516 shall apply.
(b) Not later than 5 days before the
scheduled date of any hearing before the board or
presiding officer, the parties shall submit and
exchange a list of all witnesses to be called to
testify at the hearing and the purpose of their
testimony and a list of exhibits. These requirements
may be satisfied by the parties' participation in a
pre-hearing conference under Pub 202.01.
(c) Any party may file a written
application for a subpoena by requesting the board to
issue a subpoena. The application shall identify the
witnesses, his or her residential mailing address,
shall list any documents sought under a subpoena duces
tecum and shall set out a clear and concise statement
of the reason for making the application. Witnesses
subpoenaed shall be allowed the same fees as those
paid to witnesses in the superior court. Requirements
for service and fees shall be borne by the party
requesting the subpoena.
(d) No employee serving as a witness
or as counsel at a hearing shall suffer any loss of
pay or benefits for having so appeared or served. In
the case of such loss, a violation of RSA 273-A:5, I
shall be presumed. However, any pay to which the
witness may be entitled to under this paragraph may be
reduced by the amount of any witness fee received.
(e) The presiding officer, on his or
her own motion or at the request of a party or
parties, shall sequester witnesses, when it shall
assist the trier of fact.
Readopted with
amendments Pub 203.02, effective 1-29-08
Pub 203.02
Rights to Representation; Rules of Evidence.
(a) Any party to an adjudicative proceeding may be
represented by an attorney licensed to practice law in
New Hampshire or another person of the party's choosing.
The attorney or the party representative shall notify
the presiding officer of such representation in writing
by filing a separate Notice of Appearance form not later
than the time by which the responsive pleadings are
exchanged by the parties or upon engagement if engaged
thereafter., provided, however, that an attorney or
party representative who files the initial complaint or
petition is not required to file a separate Notice of
Appearance form.
(b) The appearance filed by the party's representative
shall include the following:
(1) A brief
identification and any docket number associated with
the matter in which the representative will appear;
(2) A statement as to
whether the representative is an attorney and if so,
whether that representative is licensed to practice
in New Hampshire; and
(3) That
representative's daytime business address and
telephone number.
(c) Nothing in these rules shall be construed to allow
or encourage the unauthorized practice of law.
(d) All testimony of parties or witnesses shall be made
under oath or affirmation administered by the presiding
officer.
(e) The formal rules of evidence shall not apply in
adjudicative proceedings. Any oral or documentary
evidence shall be received except that the presiding
officer shall rule on and exclude irrelevant, immaterial
or unduly repetitious evidence. The board shall observe
those matters of privilege recognized by law. Objections
to evidence offered may be made by a party and shall be
ruled on by the presiding officer, thus causing it to be
noted in the record of proceedings.
(f) Documentary evidence shall be received by the board
or presiding officer. Each exhibit shall contain an
original, or authenticated conformed copy of the
original, and 5 copies, the production and copying of
which shall have been arranged prior to the day of
hearing, unless extenuating circumstances make this
impossible. At least 5 days before the scheduled
hearing, or, in the case of rebuttal exhibits submitted
at hearing, at least 5 days after the hearing, each
party shall file one copy of their proposed exhibits
electronically, properly marked for identification
and/or accompanied by a separate statement designating
exhibits which may be joint or exhibits with respect to
which any objection is waived. Electronic filing of
hearing exhibits, including any rebuttal exhibits
submitted at hearing, shall not be required when the
total number of pages for all of a party’s exhibits
exceeds 100 pages, exclusive of any collective
bargaining agreements which may be offered as exhibits,
or when a motion seeking relief from the requirement of
electronic filing of exhibits has been granted, such
motions to be filed by the time of the pre-hearing
conference, if any, or otherwise at least 15 days prior
to the day of hearing .
(g) In order to facilitate hearings and the taking of
documentary evidence or testimony thereon, pursuant to
RSA 541-A:33, V, the board or the presiding officer
shall take official notice of:
(1) Any fact or
result which would be judicially noticed by the
courts of this state;
(2) The record of
other proceedings before the board; and
(3) Generally
recognized and commonly accepted terminology
pertaining to public sector labor-management
relations.
(h) These rules do not contemplate the utilization of
formal or informal discovery procedures by the parties
prior to hearing.
Pub. 203.03 Motions; Objections.
(a) Motions shall be in written form
and filed with the presiding officer, unless made in
response to a matter asserted for the first time at a
hearing or on the basis of information that was not
received in time to prepare a written motion.
(b) Oral motions and any oral
objection to such motions shall be recorded in full in
the record of the hearing. If the presiding officer
finds that the motion requires additional information
in order to be fully and fairly considered, the
presiding officer may direct the moving party to
submit the motion in writing, with supporting
information.
(c) Objections to written motions
shall be filed within 15 days of the date of the
motion, unless the circumstances of the case, as
determined by the presiding officer, require a shorter
period.
(d) The presiding officer shall rule
upon a motion after full consideration of all
objections filed and other factors relevant to the
motion.
Readopted with
amendments Pub 203.04, effective 1-29-08
Pub 203.04 Testimony; Filing of
Briefs.
(a) Any person
whose interests might be affected by the determination
of the board or the presiding officer shall be permitted
to testify at the hearing.
(b) If the presiding
officer determines that a hearing on any matters before
it is unnecessary because there is no dispute on a
material fact, it shall seek agreement of the parties to
an abbreviated process and shall notify the parties of
the date by which briefs may be submitted on the matters
in question.
(c) The presiding officer
shall require or shall allow, upon the request of a
party, the filing of pre-hearing and/or post hearing
briefs if the presiding officer determines that the
submission of such briefs will be of assistance in
deciding some or all of the issues in the case.
(d) All such required or
allowed post-hearing briefs shall be filed no later than
14 days following the last day of hearing, unless the
presiding officer establishes a different date. Others
entitled to participate, including those with amicus
curiae status, shall submit briefs by the same deadline.
(e) Except by prior leave of
the presiding officer, no brief or memorandum shall
exceed 15 pages. Each brief shall be prepared in a font
size no smaller than 10 characters per inch or, if a
proportionately spaced font is used, no less than 12
point. Each brief shall have no less than one inch
margins. Each brief shall be consecutively numbered in
the bottom center of each page; and be double spaced
except for quoted material.
Pub 203.05 Closing of the Record.
(a) After the conclusion of the
hearing, the record shall be closed and no other
evidence shall be received into the record, except as
allowed by paragraphs (b) and (c) of this section.
(b) Before the conclusion of the
hearing, the presiding officer shall require, or a
party may request that the record be left open to
accommodate the filing of specified evidence not
available at the hearing. If the other parties to the
hearing have no objection or if the presiding officer
determines that such evidence is necessary to a full
consideration of the issues raised at the hearing, the
presiding officer shall specify a date after the
hearing until which the record shall remain open to
receive the evidence.
(c) If any other party to the
hearing requests time to respond to evidence submitted
under paragraph (b) above, the presiding officer shall
specify a date following filing of the material for
the filing of a response. If any other party to the
hearing requests the opportunity to cross-examine on
the additional evidence submitted and admitted, the
presiding officer shall specify a continued hearing
date following filing of the materials for the purpose
of conducting an examination on the additional
evidence.
Pub 203.06 Reopening of the Record.
(a) At any time prior to the
issuance of the decision on the merits, the presiding
officer, on the presiding officer's own motion or on
the motion of any party, shall reopen the record to
receive newly discovered, relevant, material and
non-duplicative testimony or evidence not previously
received and not previously available at the time of
hearing if the presiding officer determines that such
testimony and evidence are necessary to a full
consideration of the issues which form the subject of
the hearing.
(b) Requests to reopen the record
made after one or more parties have left the hearing
shall be made in writing and supplied to the board or
presiding officer and to any parties to the proceeding
by the requestor. The requirements of Pub 201.01 shall
be met.
(c) The presiding officer shall give
written notice of such further proceedings if the
parties are no longer present. The presiding officer
shall also specify a date by which other parties shall
respond to or rebut the newly received evidence.
Readopted with
amendments Pub 203.07, effective 1-29-08
Pub 203.07 Transcripts.
(a) All hearings shall be electronically recorded by the
board or its agents or employees. Any person desiring to
make a recording of a hearing may do so in a
non-disruptive manner. However, the board's recording of
the proceedings shall be considered the official record
thereof. Copies of the board's recording of the
proceeding may be obtained upon request under Pub
103.01(b).
(b) In the event a party appeals a board decision to the
Supreme Court, and that party's appeal is accepted for
review, the appealing party shall initially bear the
full, reasonable cost of preparing the transcript.
Transcription shall be arranged in accordance with RSA
541-A:31, VII. The appealing party shall, upon
completion of transcription, provide the original
transcript to the board no later than 14 days prior to
the date established by the Supreme Court for the filing
of board’s record for inclusion within the record to be
submitted to the Supreme Court. The costs of
transcription shall include copies for all parties of
record.
Top
PART Pub 204
DECISIONS
Pub 204.01 Time Periods.
Decisions rendered by the board or presiding officer
shall be issued within 45 days after the close of the
hearing. All decisions shall be accompanied by
findings of fact and rulings of law. In the case where
the decision of a hearing officer is required to be
filed with the board, the hearing officer shall
simultaneously send copies thereof to the parties. The
board shall take no action on the recommendation of
the hearing officer until the 30 day period for filing
a request for review of that decision under Pub 205.01
has elapsed.
Source. #2325, eff 3-28-83; ss by
#3019, eff 5-14-85; EXPIRED: 5-14-91
New. #5679, eff 8-4-93, EXPIRED: 8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
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PART Pub
205 REVIEW AND REHEARING
Pub 205.01 Review of a Decision of
Hearing Officer.
(a) Any party to a hearing or
another person with an interest affected by the
hearing officer's decision may file with the board a
request for review of the decision of the hearing
officer within 30 days of the filing of that decision
and review shall be granted. The request shall set out
a clear and concise statement of the grounds for
review.
(b) The board shall review the case record and the
decision. The review of the board shall result in
approval, reversal or modification of the decision.
(c) The review shall be made administratively without
a hearing de novo unless the grounds for review
include mistake in material fact, in which case, a
hearing shall be scheduled.
(d) Absent a request for review, the decision of the
hearing officer shall become final in 30 days.
(e) The request for review of the hearing officer's
decision shall precede, but shall not replace, the
motion for rehearing of the board's decision pursuant
to Pub 205.02 and RSA 541-A:5.
Source. #2325, eff 3-28-83; ss by
#3019, eff 5-14-85; EXPIRED: 5-14-91
New. #5679, eff 8-4-93, EXPIRED: 8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
Pub 205.02 Motion for Rehearing.
(a) Any party to a proceeding before
the board may move for rehearing with respect to any
matter determined in that proceeding or included in
that decision and order within 30 days after the board
has rendered its decision and order by filing a motion
for rehearing under RSA 541:3. The motion for
rehearing, also known as reconsideration, shall set
out a clear and concise statement of the grounds for
the motion. Any other party to the proceeding may file
a response or objection to the motion for rehearing.
However, within 10 days of the date the motion was
filed, the board shall grant or deny a motion for
rehearing, or suspend the order or decision complained
of pending further consideration, in accordance with
RSA 541:5.
(b) Any other person, employee
organization or public employer with an interest
affected by any decision and order of the board may
apply for a rehearing under this section in the same
manner as a party to the original proceeding.
Pub 205.03 Appeal From Decision
and Order on Rehearing. Appeals from decisions and
orders of the board shall be taken to the New
Hampshire Supreme Court under RSA 541:6 within 30 days
after the application for rehearing is denied or, if
the application is granted, within 30 days after the
decision on rehearing.
Source. #2325, eff 3-28-83; ss by
#3019, eff 5-14-85; EXPIRED: 5-14-91
New. #5679, eff 8-4-93, EXPIRED: 8-4-99
New. #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by
#7187, eff 1-8-00
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PART
Pub 206 DECLARATORY RULINGS, RULEMAKING PROCEDURES
Pub 206.01 Petition for Declaratory
Ruling.
(a) Any public employer, any public
employee or any employee organization may petition the
board under RSA 541-A for a ruling regarding the
applicability of any statute within the jurisdiction
of the board to enforce, or regarding any rule or
order of the board, by filing with the board a
petition for declaratory ruling setting out:
(1) The specific statute, rule or
order whose applicability is in question; and
(2) A clear and concise statement of the facts
giving rise to the petition.
(b) The board shall determine within
30 days of filing whether it shall dismiss such a
petition or issue a ruling, and it shall subsequently
give a ruling on all such petitions properly before it
as expeditiously as possible.
(c) The board shall dismiss any such petition whose
subject matter:
(1) Is substantially the same as
that of a petition for declaratory ruling previously
dismissed;
(2) Was the subject of a previous ruling on the
merits, absent a showing that the circumstances
attending the previous ruling or dismissal have
changed substantially in the intervening period.
(d) Before rendering a declaratory
ruling, the board shall entertain briefs from persons
or organizations wishing to submit them, and upon
request of a party, it shall conduct a hearing on the
matter at which any person or organization wishing to
may testify.
Source. #7187, eff 1-8-00
Pub 206.02 Petition for Adoption of
Rules.
(a) Any person may petition the
board pursuant to RSA 541-A:4 to exercise its
authority under RSA 273-A:2, VI, to adopt, amend or
repeal a rule by filing with the board a statement
setting out the substance or the language of the
proposed rule or amendment together with a clear and
concise statement of the reason for proposing the new
rule, or for amending or repealing an existing rule.
(b) The board shall, within 30 days of the filing of
the petition, either deny the petition in writing,
stating its reasons for doing so, or initiate
rulemaking procedures under RSA 541-A:3.
(c) Petitions for adoption, amendment or repeal of
rules shall be denied for the following reasons:
(1) The substance of the
rulemaking petition conflicts with RSA Chapter 273-A
or other statutes;
(2) The subject matter is the subject of litigation
pending before the board;
(3) The board determines that the proposed rule will
not further the interest of constructive labor
relations in this state.
Source. #7187, eff 1-8-00
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PART
Pub 207 RECORDS, REPORTS, AND REQUIRED FILINGS
Pub 207.01 Records. All
records of the board shall be kept for 10 years as
required by RSA 273-A:16, II. All hearings before the
board and before all hearing examiners shall be
electronically recorded. Any person desiring to make a
transcript of any hearing may apply to the executive
director of the board requesting a copy of the
recorded proceedings or may listen to the tape
recording of the hearing on the premises of the board.
Source. #7187, eff 1-8-00
Pub 207.02 Reports.
(a) The biennial report required to
be submitted to the governor and council under RSA
273-A:16, III shall set out:
(1) Any changes in the membership
of the board and its staff and other administrative
information;
(2) Activities sponsored by the board or in which
the board or any of its members officially
participated;
(3) Statistics regarding filings for certifications,
unit determinations, determinations on unfair labor
practice complaints, intervention in collective
bargaining negotiations and other such matters.
(b) The biennial report shall also
contain the board's recommendations for amendments to
RSA 273-A or 273-C and any changes to other statutes
which its experience suggests might be in the public
interest and its observations regarding the effect of
labor statutes enacted or amended during the preceding
years.
Source. #7187, eff 1-8-00
Pub 207.03 Filing Budget Submission
Date, Agreements
(a) Every public employer subject to
RSA 273-A shall file with the board not later than
September 1st, annually, the budget submission date to
be used by all parties dealing with the public
employer under RSA 273-A as required by RSA 273-A:3,
IV.
(b) Every collective bargaining agreement concluded
between the exclusive representative of an employee
organization and a public employer shall be reduced to
writing and signed by the parties and a copy of all
such agreements shall be filed with the board within
14 days after they are executed as required by RSA
273-A:16. One party shall be chosen by the parties to
be responsible for filing said agreement and that
party shall be named on the signature page of the
agreement.
Source. #7187, eff 1-8-00
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CHAPTER
Pub 300 PUBLIC EMPLOYEE LABOR RELATIONS
PART
Pub 301 BARGAINING UNIT CERTIFICATION
Readopted with
amendments Pub 301.01, effective 1-29-08
Pub 301.01 Election of
Exclusive Representative.
(a) A petition for certification as the exclusive
representative of a bargaining unit having no certified
representative may be filed at any time. A petition for
certification as the exclusive representative of a
bargaining unit for which a collective bargaining
agreement constituting a bar to election under RSA
273-A:11, I (b) presently exists shall be filed no more
than 240 days and no less than 180 days prior to the
budget submission date of the affected public employer
in the year that agreement expires, notwithstanding any
provisions in the agreement for extension or renewal.
(b) Any petition filed less than 180 days prior to the
budget submission date of the affected public employer
shall be accompanied by an explanation of why the
petition could not have been filed sooner. The board
shall refuse to entertain any petition filed so close to
the budget submission date of the affected employer that
the board cannot reasonably conduct the election called
for in the petition within 120 days of the budget
submission date.
(c) The petition under (a) above shall set out:
(1) The name, address
and telephone number of the employee organization,
employee group or person responsible for petitioning
for certification as the exclusive representative of
the bargaining unit, and of its representative, and
the affiliation, if any, of the employee
organization;
(2) The name, address and telephone number of the
affected public employer and of its representative;
(3) A description of the proposed bargaining unit,
together with the total number of employees in the
proposed bargaining unit, their classifications and
the number of employees in each classification, any
category of employee proposed to be excluded from
the bargaining unit and the reason for excluding
that category:
(4) The name, address, telephone number and
affiliation of any exclusive representative
presently representing the bargaining unit;
(5) The expiration date of any existing collective
bargaining agreement; and
(6) The budget submission date of the public
employer.
(d) This information may be provided on a petition for
certification form, copies of which may be obtained from
the board pursuant to Pub 103.02.
(e) A petition filed under this section shall, when
appropriate, contain a statement that the certification
of the proposed bargaining unit has been agreed upon by
the affected employer so indicating that no objection to
the certification is to be filed.
(f) A petition filed under this section shall also
contain a statement that at least 30% of the employees
in the proposed bargaining unit wish to be represented
by the employee organization named in the petition.
(g) Petitions seeking certification of an employee
organization as the exclusive representative of a
proposed bargaining unit composed of professional and
non-professional employees shall be supported by the
requisite percentage of employees in each category.
(h) Individual petition cards, corresponding to the
statement of support in (f), evidencing that the
requisite number of employees in the proposed bargaining
unit desire an election to be held, shall accompany the
petition but shall be kept separate from the petition in
order to ensure their confidentiality.
(i) Petition cards shall, as a minimum, disclose the
purposes for which they were solicited, the name of the
labor organization or employee group soliciting same,
and bear the signature and typewritten or printed name
of the employee and the date the signature was obtained.
(j) If an employee has signed more than one petition
card and has signed a statement repudiating a previously
signed petition card, the board shall recognize the last
dated card or statement.
(k) The board shall review the sufficiency of petition
cards as soon as practicable once the board concludes,
in its discretion, that it has received sufficient
information to complete this determination. The board
shall accept and review any subsequently filed petition
cards or revocations of petition cards up to the time of
its determination. Upon the completion of its
determination the board shall notify the parties by
order of its conclusions as to the sufficiency of
petition cards and shall not thereafter accept nor
review additional petition cards, regardless of whether
such petition cards are filed by additional employees or
represent revocations of previously filed and reviewed
petition cards.
(l) In determining whether the requisite number of
employees in the proposed bargaining unit desire an
election to be held, the board shall not consider:
(1) Any undated
signature,
(2) Any signature obtained more than 6 months prior
to the date the petition was filed, or
(3) The signature of any employee who is no longer
employed in the proposed bargaining unit when the
petition is filed.
(m) Any person filing a petition for certification shall
at the same time deliver a copy of the petition to any
employee organization identified in the petition and to
the public employer identified in the petition.
(n) The public employer shall display copies of the
petition at locations where employees of the existing or
proposed bargaining unit work on the next working day
following receipt of the petition. When it is necessary
for a public employer to display copies of the petition
at diverse locations because potential bargaining unit
members work at sites remote from the place where the
administration of the public employer is located, copies
of the petition shall be mailed to those remote
locations no later than the next working day following
receipt of the petition. The copies so mailed shall be
displayed at those remote locations on the same day they
are received.
(o) The public employer identified in the petition shall
forward to the board as expeditiously as possible a
complete list of the names of the employees in the
bargaining unit proposed in the petition in order to
permit the board to compare this list with the names
submitted in support of the petition.
(p) A petition filed under this section shall bear a
conspicuous notice that exceptions and petitions to
intervene shall be filed within 15 days of the date the
original petition is filed. Exceptions shall set out a
clear and concise explanation of any factual or legal
reasons why the board should not entertain the petition.
(q) A pre-hearing conference as described in Pub 202.01
may be scheduled when, for example:
(1) Issues revealed
in pleadings might be disposed of or thereby
clarified; or
(2) Evidentiary or procedural matters might be
expedited.
(r) If the board determines that the requisite showing
of interest has been made, it shall proceed to determine
the appropriate bargaining unit under Pub 302 and then
to conduct an election under Pub 301.
