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PART
Pub 101 DEFINITIONS
PART
Pub 102 ORGANIZATION, SCOPE OF RESPONSIBILITY, QUORUM
PART Pub 103
FILINGS, RECORDS
PART
Pub 201 PRELIMINARY MATTERS AND CONFLICT OF INTEREST
PART Pub 202
PRE-HEARING
PART Pub 203
CONDUCT OF HEARING
PART Pub 204 DECISIONS
PART Pub
205 REVIEW AND REHEARING
PART
Pub 206 DECLARATORY RULINGS, RULEMAKING PROCEDURES
PART Pub 207 RECORDS AND REQUIRED FILINGS
PART
Pub 301 BARGAINING UNIT CERTIFICATION
PART
Pub 302 DETERMINATION OF APPROPRIATE BARGAINING UNITS
PART Pub 303 ELECTIONS
PART Pub
304 UNFAIR LABOR PRACTICE
PART Pub 305
IMPASSE RESOLUTION
CHAPTER Pub 100 ORGANIZATIONAL RULES
PART Pub 101
DEFINITIONS
Pub 101.01 Definitions.
(a) "Adjudicative proceeding" means
hearings on any contested matter conducted by the board
or a hearing officer and brought in conformance with
these rules to the board or its employees or agents for
adjudication, determination or resolution under the
authority conferred in RSA 273-A or 273-C.
(b) "Answer" means a written responsive
pleading to a complaint or petition filed with the board
and which answers, paragraph by paragraph, in separately
numbered paragraphs, the allegations in the complaint or
petition and which specifically admits or denies each
allegation.
(c) "Board" means the public employee
labor relations board of the State of New Hampshire as
defined and provided for in RSA 273-A:2.
(d) "Complaint" means a pleading filed
with the board which complains of anything done or
omitted from being done in violation of any law, rule,
regulation, decision or order administered or adopted by
the board.
(e) "Complainant" means any party who
files a complaint or on whose behalf a complaint is
filed with the board.
(f) "Day" means a calendar day unless
further definition, limitation or explanation defines it
differently in the context in which it is used.
(g) "Declaratory ruling" means 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.
(h) "Executive director" means the chief
legal administrative and executive employee of the board
as contemplated in RSA 273-A:2.
(i) "Hearing" means a proceeding before
the board, its employees or agents, inclusive of a
hearing officer as contemplated in RSA 273-A:6, for
which notice has been given by the board in accordance
with the applicable statutes and rules adopted
thereunder and at which time all interested parties are
afforded an opportunity to present such written and/or
oral testimony as the board, its employees or agents
deem relevant and material to the issues.
(j) "Intervenor" means any petitioner who
has sought and been granted permission by the board to
intervene in any hearing, inclusive of status to
participate therein as an amicus curiae.
(k) "Motion" means a filing in a pending
case requesting specific relief.
(l) “Objection” means a written
responsive pleading to a motion.
(m) "Order" means the whole or part of
the board's final disposition of a matter, other than a
rule, but does not include decisions to postpone or
continue a matter or to issue interim relief pending
disposition by a final order.
(n) "Petition" means a pleading, other
than a complaint, filed with the board for the purpose
of seeking an approval, determination, consent,
certification, decertification or authorization from the
board.
(o) "Petitioner" means any party who
files a petition or on whose behalf a petition is filed
with the board.
(p) "Presiding officer" means that member
of the board representing the public at large, rather
than labor or management, who is acting as chair of a
hearing conducted by the board, or any agent or employee
of the board acting as a hearing officer under RSA 273-A
or 273-C.
(q) "Respondent" means a party subject to
the jurisdiction of the board named in a complaint or
petition and to whom notice has been given about the
filing of the complaint or petition.
(r) "Unfair labor practice" means the
alleged commission of an act violative of RSA 273-A:5;
or 273-C:6 for which a complaint can be filed by the
party or parties aggrieved thereby.
PART Pub 102 ORGANIZATION, SCOPE OF
RESPONSIBILITY, QUORUM
Pub
102.01 Organization.
(a) The board regulates public sector
bargaining and is the agency responsible for the
administration of laws pertaining to labor-management
relations between public sector labor organizations and
public sector management at the municipal, district,
county, state and university levels as well as between
horse and dog track labor organizations and their
management in the private sector.
(b) Using the guidelines set forth in RSA
273-A:8 and Pub 302.01 and 302.02, the the board
determines appropriate bargaining units. Such
bargaining units may be determined upon the basis of the
parties’ agreement or as the result of bargaining unit
composition hearings. It also certifies and decertifies
exclusive bargaining unit representatives through the
secret ballot election process or written majority
authorization, as applicable.
(c) The board hears and decides unfair
labor practice cases and issues formal written
decisions.
(d) The board grants interim relief and
issues declaratory rulings.
(e) The board is identified under RSA
273-A:12, as a resource to assist parties in the
resolution of disputes. The board furnishes names of
neutrals who might act as mediators or fact finders to
assist the parties when they encounter difficulties in
contract negotiations or have reached impasse. The board
has rulemaking authority as found at RSA 273-A:2. At
the specific and mutual request of parties, the board
furnishes the names of neutrals who might act to assist
the parties in the resolution of a specified grievance.
Pub
102.02 Composition.
(a)
Pursuant to RSA 273-A:2, I, the board shall be composed
of 5 members, appointed by the governor with the consent
of the executive council. Of these members, 2 shall have
extensive experience representing organized labor and 2
shall have extensive experience in representing
management interests. The fifth member who shall be the
chair shall be appointed to represent the public at
large, and shall not hold elective or appointive public
office, or elective or appointive office or membership
in, organized labor at the time of/or during the term of
appointment. Members of the board are subject to removal
by the governor and council for cause pursuant to RSA
273-A:2, I.
(b)
Pursuant to RSA 273-A:2, I-a, the governor and council
shall appoint, in addition to the regular board members
specified in (a), 4 alternate board members. Of these
alternate members, one shall have extensive experience
representing organized labor, one member shall have
extensive experience in representing management
interests, and 2 members shall represent the public at
large. The alternate members representing the public at
large shall not hold elective or appointive public
office, or elective or appointive office, or membership
in, organized labor at the time of/or during the term of
appointment. Alternate board members shall serve a 6
year term, and shall be subject to removal by the
governor and council.
(c)
Pursuant to 273-A:2, III, a quorum shall consist of 3
members of the board. However, no meeting shall be held
unless organized labor, management and the public at
large are each represented by at least one board member.
In the absence of the 2 regular board members
representing organized labor, the 2 regular board
members representing management, or the member
representing the public at large, their respective
alternates shall act in their places in order to
constitute a quorum representative of each interest.
Alternate board members shall also serve when the
respective regular board members do not participate in a
case due to a conflict of interest.
Pub
102.03 Location.
(a) The board's offices are located at:
Public Employee Labor Relations Board
153 Manchester Street
GAA Plaza, Building No. 1
Concord, New Hampshire 03301-5143
(b) Electronic correspondence
or filings shall be addressed and sent to the board at
pelrb.info@nh.gov.
(b) The board may be contacted by
telephone at (603) 271-2587. Information about the board
is available on its website: www.nh.gov/pelrb.
PART Pub 103 FILINGS, RECORDS
Pub 103.01 Public Access and Fees.
(a) RSA 273-A or 273-C, board rules,
decisions, forms, and other material and information
may be viewed and printed from the board’s website,
www.nh.gov/pelrb. Copies of public records kept by
the board are available for the actual cost of
reproduction and handling as determined by the board.
(b) Copies of electronically recorded
tapes of hearings conducted by the board, its agents or
employees may be obtained upon written request made to
the board. Payment shall be enclosed with the request in
order to cover the actual cost of copying the tape and
return postage. Parties shall contact the board in
advance of their request in order to verify the amount
of payment due.
Pub 103.02 Filings.
All petitions for certification, decertification or
modification of a bargaining unit, complaints of unfair
labor practice or requests for appointment of a
mediator, fact-finder or arbitrator shall be submitted
on current board approved forms or computer templates of
current forms. Current board forms may be obtained
from the board’s website,
www.nh.gov/pelrb or from the board.
CHAPTER Pub 200 PRACTICE AND PROCEDURES
PART Pub 201 PRELIMINARY MATTERS AND CONFLICT OF
INTEREST
Pub
201.01 Documents.
(a) Except as provided in (b) below, all
orders, decisions, requested findings, correspondence,
motions, petitions, complaints and any other documents
filed with the board shall be filed or issued
electronically via internet transmission only in the
manner set forth in (d) below, and deemed to have been
issued, filed, made or received:
(1) As to orders or material issued by
the board, on the issue date; and
(2) As to petitions, complaints or
material filed by petitioners, complainants or other
persons, on the date upon which the board received the
document electronically at the board’s general email
address, pelrb.info@nh.gov or as shown on the PELRB
Website.
(b) Electronic submissions to the
individual email addresses of the executive director,
staff counsel, hearing officers, or other staff shall be
deemed not filed.
(c) A document electronically
filed shall be deemed filed on the date and time stated
on the Notice of Electronic Filing received by the party
from the board. All electronic filings shall be
completed before midnight local time in order to be
considered timely filed that day unless a different time
is established by order of the presiding officer
pursuant to (h) below.
(d) The board shall not docket nor deem
filed any complaint or other submission which requires a
filing fee until such filing fee is paid.
(e) Parties who are unable to accomplish
their filings electronically shall submit their filings
via non-electronic means together with a certification
stating why the filing cannot be accomplished
electronically. The board shall reject any such filings
which it finds could have been submitted electronically.
Parties may seek to file non-electronically between the
hours of 8:30 a.m. and 4:00 p.m. on Monday through
Friday, excluding dates when the agency is closed in
observance of state holidays. Proper non-electronic
filings shall not be docketed nor deemed filed until any
required filing fee is paid. Parties with an interest in
establishing, preserving or providing a date of such
filings shall be responsible for taking measures to
accomplish this, either by using certified or registered
mail, a courier or express delivery service or in-hand
delivery with an additional copy of the documents being
filed being stamped with a time/date device normally
used by the board for such purposes. The board shall not
accept filings via facsimile transmission.
(f) At least one copy of the documents
being filed or the accompanying letter of transmittal
shall bear an original signature of the party offering
those documents for filing. Facsimile copies shall not
be suitable for filing and shall not be accepted for
that purpose. Any document for which a filing fee is
required shall not be considered filed until the
requisite fee has been received at the board.
(g) All documents filed with the board
shall be printed, typed or clearly and legibly
reproduced on good quality paper, 8-1/2 x 11 inches in
size and shall, when filed electronically, be submitted
in Microsoft Word® or Adobe PDF® format. Filings shall
be signed by the person submitting them and shall
identify the employee organization or public employer,
if any, with which the person filing the document is
affiliated. Signatures on non-scanned documents shall be
established by the following signature format: ‘’/s/
[Insert Signatory’s Name]” and the paper form of the
document shall contain the original signature. Documents
that are electronically filed shall be maintained in
paper form by the filing party until one year after the
date of filing or until the conclusion of all appeals in
the case, whichever date is later, and shall be produced
for inspection upon request by the board or any party.
(h) Any and all documents filed
electronically via internet transmission shall adhere to
the following procedure:
(1) The filing shall include an e-mail
correspondence that identifies the name of the person or
representative making the filing, the name of the party
in whose name the document is being filed, and an
identification number assigned by the board to the
individual filing the document. The board shall provide
an identification number to any person upon request for
same; and
(2) Documents filed electronically shall
be capable of being printed, typed or clearly and
legibly reproduced on good quality paper, 8-1/2 x 11
inches in size, in Microsoft Word® or Adobe® PDF format,
and forwarded as an attachment to the above referenced
e-mail correspondence.
(i) All documents filed with the board,
including those filed electronically, for which copies
are required to be delivered to other persons or
parties, shall contain a statement certifying that a
copy of the document has been delivered to the
appropriate persons or parties and describing the date
and manner by which the document was delivered to such
persons or parties.
(j) All requests for relief shall be
separately stated at the conclusion of all pleadings or
other written submissions. Any request for relief which
seeks action or decision in advance of a final hearing
on the merits shall be presented in a separately filed
motion specifically stating the relief requested and the
factual and legal basis for the requested relief.
(k) Time limits stated in these rules
shall be extended for specific periods of time for good
cause shown, to include:
(1) Illness or weather emergency;
(2) Discovery of previously unavailable
evidence;
(3) Mistake; or
(4) Other circumstances beyond the
control of the requesting party that would result in the
suffering of undue prejudice if an extension is not
granted.
Pub
201.02 Unfair Labor Practice Complaint.
(a) Complaints may be filed at any time
within 6 months of the alleged violation. Complaints
shall be signed by the complainant and sworn to before a
person authorized to administer oaths. The board shall
receive the filing fee required by law before a
complaint is deemed filed 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,
e-mail address, title and affiliation of the party
filing the complaint;
(2) The name, address, telephone number, e-mail address,
title and affiliation of the party against whom the
complaint is filed;
(3) The name, address, telephone number and e-mail
address 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; and
(5) As to alleged violations of RSA 273-A:5, I (c) or
(d), a statement setting out whether the administrative
remedies provided by statutes other than RSA 273-A have
been exhausted.
(c) This information shall be provided on
the board’s current Unfair Labor Practice Complaint form
as provided in 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 mail if available and by
regular mail or hand delivery 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.
(f) A public employer shall post and
display copies of any complaint filed by it or against
it or delivered to it at locations where such employees
who might be directly affected by the board’s
disposition of the complaint 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.
A public employer shall file with the board a
verification of posting using a current board form not
later than 3 business days after posting.
(g) 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.
(h) 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 simultaneously deliver a copy of its
answer to the complainant within 15 days of the date the
complaint is filed. The respondent shall clearly and
concisely answer the allegations in the complaint,
paragraph by paragraph, and shall specifically deny or
admit each allegation in the complaint and explain each
allegation about which the respondent has knowledge.
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 15 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 15 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 Pub
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 201.07 (d).
(b) The public employer whose employees
might be directly affected by the board's disposition of
the complaint shall display copies of the notice of
hearing 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, the public employer shall send
copies of the notice of hearing sent by e-mail if
available, otherwise by regular mail to those remote
locations no later than the next working day following
receipt of the notice. The public employer shall
display copies of the notice of hearing at those remote
locations on the same day they are received.
Pub 201.06 Hearing Required.
(a) The presiding officer shall conduct
hearings when the presiding officer determines there
are issues of material and relevant fact in dispute.
(b) The petitioner or complainant shall
have the burden of proof with respect to the allegations
and claims made in the complaint or petition. A party
offering a motion shall have the burden of proof on the
motion.
(c) In all adjudicatory 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.
Pub 201.07 Notice of Hearings
(a) The presiding officer shall issue a
notice of hearing to the parties and any petitioner who
has properly intervened or to their counsel or other
authorized representatives who have appeared on their
behalf. The notice of hearing shall provide at least 10
days' notice of the time, place, statutory references,
subject matter of the hearing, the parties’ right to
legal counsel at their own expense and the legal
authority under which the hearing is to be held.
(b) A copy of the notice of hearing shall
be issued to the public employer whose employees will be
directly affected by the outcome of the hearing. The
employer shall display copies of the notice of hearing
at its administrative offices and locations where such
employees work on the next working day following receipt
of the notice. The employer shall send copies of the
notice of hearing by email if available, otherwise by
regular mail to remote locations no later than the next
working day following receipt of the notice. The
employer shall display copies of the notice of hearing
at those remote locations the same day as they are
received.
(c) Parties, intervenors, as well as
their counsel or other authorized representatives to a
pending proceeding shall file with the board and keep
current their their email and regular mail address and
telephone number. Notices issued by the board to email
address or regular mail address on file with the board
shall be presumed to have been received by the addressee
to whom they were directed.
(d) The 10 day notice of hearing
requirement shall be shortened if:
(1) The parties, intervenors, or their
counsel or authorized representative have waived the 10
day notice of hearing requirement; or
(2) The presiding officer determines that
shorter notice is necessary:
a. Because the pending proceeding
includes a request for 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 or intervenor has shown a likelihood of prevailing
based on the pleadings; or
b. In order to avoid unnecessary
prejudice to a party or intervenor.
Pub 201.08
Motions to Continue
(a) All requests to continue a scheduled
hearing or pre hearing shall be made by motion, which
shall
(1). Be submitted by motion at least 7
calendar days prior to the scheduled hearing or pre
hearing;
(2). State the specific reason for the
request;
(3). State that concurrence to the
request has been sought from the opposing party;
(4). State that the represented party has
concurred, objects, consents, or takes no position on
the request;
(5). State at least 2 alternative hearing
dates that are acceptable to the parties; and
(6). If unable to contact opposing party,
describe all attempts that were made to contact opposing
party.
(b). Motions filed by counsel or other
authorized representative shall state that the
petitioner, complainant, or respondent being
represented has been informed of the basis for the
requested continuance and provided their assent.
(c) The presiding officer shall grant the
motion to continue if:
(1) The moving party has stated a
compelling need for the requested 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, has filed the
motion to continue within 10 days of the issuance of the
notice of hearing, 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
has provided the case or docket number to the board; or
d. Other sufficiently serious
circumstances that preclude a party's availability to
attend the hearing.
(d) The presiding officer shall grant a
motion in the absence of the above process only in an
emergency situation for reasons such as severe weather,
death in the family, traffic accidents, and illness.
Pub 201.09
Duration of Hearing
(a) Hearings shall continue from day to
day, or may be 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.
Pub 201.10
Petitions to Intervene
(a) The presiding officer shall grant a
petition to intervene and/or to participate as amicus
curiae if the presiding officer determines that the
petitioner 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.
(b) In the event a petition to intervene
is granted, the presiding officer shall limit the
intervener's participation to minimize duplication of
the case presented by the complainant, petitioner or
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.
Pub 201.11 Consolidation
The presiding officer shall grant a motion, whether by a
party or by its own motion, to consolidate a matter or
matters for hearing if the presiding officer determines
that the parties are similar, that there are multiple
pleadings or motions seeking the same relief or both,
and that consolidation will result in more efficient
adjudication of the issues and will avoid duplicative
proceedings. The presiding officer shall consider any
objections to consolidation before finally acting on a
motion to consolidate but no hearing is required before
action on consolidation is taken.
Pub 201.12 Public Hearings
All hearings shall be open to the public subject to the
provisions of RSA 91-A.
Pub 201.13 Communication with Board
on Pending Matters. Except
for oral communications with the board during the course
of a hearing, all communication with the board on
pending matters shall be by written filings in
compliance with these rules.
Pub
201.14 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.
Pub 201.15 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 or board staff 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 of the
proceedings.
Pub 201.16 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.
Pub
201.17 Filing Fee. All unfair labor practice
complaints shall be accompanied by a filing fee as
provided in RSA 273-A:6. Complaints shall not be deemed
filed until the board receives the filing fee.
PART Pub 202 PRE-HEARING
Pub 202.01 Pre-Hearing Conference.
(a) Upon the presiding officer’s
determination that a pre-hearing conference is
necessary and appropriate in order to facilitate
proceedings and encourage informal disposition of
matters pending before it, the presiding officer shall
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. The presiding
officer shall not conduct a pre-hearing conference if
the presiding officer determines that a pre-hearing
conference would result in unnecessary delay in the
proceedings.
(b) In the event a pre-hearing conference
is scheduled, the parties shall complete and file a
joint pre-hearing worksheet within 10 days or such other
time period as ordered by the board.
(c) The joint pre-hearing worksheet
shall include the following information:
(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) List of pending motions;
(5) Identification of witnesses;
(6) Estimate of time for case
presentation;
(7) List of joint and agreed exhibits;
(8) List of other exhibits and basis for
objections to same;
(9) An agreed statement of unconstested
facts; and
(10) An agreed statement of contested
facts.
(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) Finalizing stipulations of fact ;
(4) Identifying and/or limiting on the
number of witnesses to be called;
(5) Reviewing, exchanging and final
marking of exhibits; and
(6) Addressing other matters which may
assist and aid in the disposition of the pending matter.
(e) Counsel of record, or the authorized
representative of record, shall attend The attendance
of witnesses or interested persons not involved with
the management of the case shall not be required.
(f) Pre-hearing conference attendees
shall be prepared to discuss the issues and evidence
involved in the case in a substantive manner. 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 authorized representatives shall
have authority to engage in such discussions as well as
access to the represented party or intervenor by
telephone during the conduct of the conference.
(g) The presiding officer shall assist
the parties as necessary and appropriate in formulating
resolutions to the dispute, including referral to
mutually agreed mediation or arbitration if requested by
the parties.
PART
Pub 203 CONDUCT OF HEARING
Pub
203.01 Witnesses; Subpoenas; Exhibits.
(a) Not
later than 10 days before the scheduled date of any
hearing, 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 a party’s filing
of witness and exhibit lists in a joint pre-hearing
worksheet or according to a schedule otherwise ordered
by the presiding officer.
(b) 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.
(c) 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.
(d)
Upon written application, the board shall compel the
attendance of witnesses and the production of documents
by the issuance of subpoenas in the name of the board
under RSA 273-A:6, IV provided .that the application:
(1)
Identifies the witness and the witnesses’ residential
mailing address if known, or the witnesses’ work
address;
(2)
Describes in detail any documents sought under a
subpoena duces tecum and the name and residential or
work address of the custodian of the requested
documents; and
(3)
Contains a clear and concise statement of the reason for
making the application, including a description of the
relevance of the witnesses’ testimony or requested
documents.
(e) A witness who is subpoenaed shall be
paid fees as provided in RSA 516. Requirements for
service and fees shall be borne by the party requesting
the subpoena.
Pub 203.02
Rights to Representation
(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.
Pub 203.03 Rules of Evidence
(a) 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.
(b) All testimony of parties and
witnesses shall be made under oath or affirmation
administered by the presiding officer.
(c) 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 .
(d) In order to facilitate hearings and
the taking of documentary evidence or testimony thereon,
pursuant to RSA 541-A:33, V, 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.
Pub. 203.04 Motions; Objections.
(a) All requests for specific relief in a
pending case shall be presented by means of a motion.
(b) 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.
(c) 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.
(d) 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.
(e) The presiding officer shall rule upon
a motion after full consideration of all objections
filed and other factors relevant to the motion.
Pub 203.05 Testimony; Filing of
Briefs.
(a) Any person whose interests might be
affected by the proceedings shall be permitted to
testify at the hearing providing they have been granted
the status of intervenor by the board.
(b) If the presiding officer determines
that a hearing on any matters before it is unnecessary
because there are no genuine disputes of relevant and
material fact, the presiding officer 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 203.06 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 203.07 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.
Pub 203.08
Transcript
(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 and one copy of the 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 submitted to the
board and for all parties of record.
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 submission of
briefs, if allowed or required, or the submission of
evidence into the record, whichever is later. All
decisions shall be accompanied by findings of fact and
rulings of law.
PART Pub 205 REVIEW AND REHEARING
Pub
205.01 Review of a Decision of Hearing Officer.
(a)
Any party to a hearing or intervenor 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 issuance of that
decision and review shall be granted. The request shall
set out a clear and concise statement of the grounds for
review and shall include citation to the specific
statutory provision, rule, or other authority allegedly
misapplied by the hearing officer or specific findings
of fact allegedly unsupported by the record.
(b)
The board shall review whether the hearing officer has
misapplied the applicable law or rule or made findings
of material fact that are unsupported by the record and
the board’s review shall result in approval, denial, or
modification of the decision of the hearing officer. The
board’s review shall be made administratively based upon
the hearing officer’s findings of fact and decision and
the filings in the case and without a hearing or a
hearing de novo unless the board finds that the party
requesting review has demonstrated a substantial
likelihood that the hearing officer decision is based
upon erroneous findings of material fact or error of law
or rule and a hearing is necessary in order for the
board to determine whether it shall approve, deny, or
modify the hearing officer decision or a de novo hearing
is necessary because the board concludes that it cannot
adequately address the request for review with an order
of approval, denial, or modification of the hearing
officer decision. All findings of fact contained in
hearing officer decisions shall be presumptively
reasonable and lawful, and the board shall not consider
requests for review based upon objections to hearing
officer findings of fact unless such requests for review
are supported by a complete transcript of the
proceedings conducted by the hearing officer prepared by
a duly certified stenographic reporter.
(c)
Absent a request for review, the decision of the hearing
officer shall become final in 30 days.
(d)
The request for review of the hearing officer's decision
shall precede, but shall not replace, a motion for
rehearing of the board's decision pursuant to Pub 205.02
and RSA 541-A:5.
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 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 provided that
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.
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 specific applicability of any
statute within the jurisdiction of the board to enforce,
or 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 boardshall dismiss any such petition whose subject
matter:
(1) Is
substantially the same as that of a petition for
declaratory ruling previously dismissed; or
(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)
The boardshall determine whether briefs will assist in
issuing a ruling on a declaratory ruling petition and in
the event briefs will be received shall establish a
schedule for their submission.
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; or
(3) The board determines that the proposed rule will not
further the interest of constructive labor relations in
this state.
PART
Pub 207 RECORDS 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 hearing officers shall be electronically
recorded. Copies of electronically recorded tapes of hearings conducted by the
board, its agents or employees may be obtained upon
written request made to the board. Payment shall be
enclosed with the request in order to cover the actual
cost of copying the tape and return postage. Parties
shall contact the board in advance of their request in
order to verify the amount of payment due.
Althernatively, any person may listen to
a tape recording of the hearing on the premises of the
board.
Pub
207.02 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.
CHAPTER Pub 300 PUBLIC EMPLOYEE LABOR RELATIONS
PART Pub 301 BARGAINING UNIT
CERTIFICATION
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.
Pub
301.02 Intervenors.
Any employee organization other than the petitioner and
any incumbent exclusive representative wishing to appear
on the ballot shall file a petition to intervene setting
out the same information as required in a petition filed
under Pub 301.01 except that a petition to intervene
shall be supported by at least 20% of the employees in
the bargaining unit proposed in the petition to
intervene. Petitions shall be filed under this section
within 15 days of the date the original petition for
certification or petition challenging certification is
filed. Each intervenor shall deliver a copy of its
petition to intervene to the parties named in the
original petition when it files its petition with the
board.
Pub
301.03 Decertification of Exclusive Representative.
(a) A
petition for decertification alleging that the members
of a bargaining unit no longer wish to be represented by
the employee organization presently representing them
shall contain the same categories of information and
shall be treated in the same fashion as a petition filed
under Pub 301.01. This information may be provided on a
petition for decertification form, copies of which may
be obtained from the board pursuant to Pub 103.02.
(b)
When such a petition is successfully brought and
affirmatively voted upon so that a majority of the votes
have been cast for the proposition of "No
Representative," the certified bargaining agent shall be
decertified and there shall no longer be any
organization with the statutory authority to give notice
of an intent to bargain under RSA 273-A or 273-C or to
enforce the terms of any collective bargaining agreement
between a public employer and a formerly certified
bargaining agent.
(c) If
a group of employees in a bargaining unit seeks to
decertify an existing certified bargaining agent and to
replace it with a new certified bargaining agent, the
group shall file a petition for certification under the
applicable provisions of Pub 301.01.
(d)
The group, as petitioners, shall disclose on the
petition for certification form that there is an
existing certified bargaining agent, its identity,
representative, place of business and telephone number.
(e)
Petitioners shall provide notice to the currently
certified bargaining representative who shall become a
party to that proceeding, entitled to the same service
and notice requirements as apply to the public employer.
(f) If
petitioners are successful under these circumstances in
decertifying an incumbent exclusive bargaining
representative and in replacing it with a new certified
bargaining agent in accordance with the majority vote
requirements of these rules, then:
(1)
Any existing collective bargaining agreement between the
former certified bargaining agent and the public
employer shall thereafter be administered by the newly
certified collective bargaining agent as of the date the
board has certified it as such, through its date of
termination;
(2)
If, at the time the newly elected exclusive bargaining
agent is certified as such, there is no collective
bargaining agreement in effect or the formerly certified
exclusive bargaining agent and the public employer were
in the course of bargaining for such an agreement, the
newly certified collective bargaining agent shall assume
the responsibility for continuing with that bargaining
or for giving notice of intent to bargain within the
time limits prescribed by statute; or
(3) If
a newly certified collective bargaining agent enters
on-going negotiations after the time for introducing new
proposals has passed, it shall be permitted to initiate
a single, one-time exchange of proposals or
modifications to existing proposals.
(g)
Pursuant to RSA 273-A:10, VI(b), the board shall
decertify any employee organization which is found in a
judicial proceeding comporting with RSA 273-A:15 to have
discriminated with regard to membership, or with regard
to the conditions thereof, because of age, sex, race,
color, creed, marital status, or national origin; or has
systematically failed to allow its membership equal
participation in the affairs of the employee
organization. If it is found in such judicial proceeding
that grounds for decertification exist, the board shall
conduct a hearing to determine if the certification of
the employee organization which is the exclusive
representative should be revoked under RSA 273-A:10,
VI(b).
(h)
After decertification of an exclusive representative
under the provisions of this subsection, the rules of
contract bar, RSA 273-A:11, I(b), shall not apply and a
petition for certification may be filed under Pub 301.01
at any time. No employee organization decertified under
the provisions of Pub 301.03(g) may seek to represent
any bargaining unit in any election subsequent to its
decertification until it has satisfied the board that it
has purged itself of the violations for which it was
decertified.
(i)
Upon decertification of an exclusive representative, the
board shall deliver a notice of decertification to the
decertified employee organization and to the public
employer in which affected bargaining unit is located.
The public employer shall immediately display copies of
the notice at locations where employees of the affected
bargaining unit work.
(j)
Notwithstanding the foregoing provisions of Pub 301.03,
a certified bargaining agent may surrender its
certification at any time by notice of its intent to
surrender to members of the bargaining unit and written
notice filed with the board and there upon:
(1)
The board shall issue documentation of surrender;
(2)
The documentation shall state the effective date
whereupon the surrendering bargaining agent shall have
no further responsibilities under the collective
bargaining agreement, or under those provisions of RSA
273-A or 273-C giving it authority to bargain
collectively;
(3)
The terms of any collective bargaining agreement shall
be void as of the effective date of the surrendering;
and
(4) The surrendering of a certification as bargaining
agent shall not be grounds to bar a subsequent
bargaining agent election within the following 12 months
under RSA 273-A:10, III or 273-C:10, III.
Pub
301.04 Merger or Affiliation of Existing Exclusive
Representative.
(a) In
the event of the merger or affiliation of the existing
exclusive representative with any other national,
regional, state or local organization or the removal of
any such exclusive representative from affiliation with
any such organization, the board shall duly note the
status and identity without the requirement of a new
election if all of the following conditions are met:
(1)
The internal rules of the exclusive representative as to
the approval of the affiliation or disaffiliation have
been followed:
(2) The employees in the bargaining unit have been
provided 2 weeks written notice by regular mail or other
such opportunity intended to inform of the proposed
change in status or organizational form through
affiliation or disaffiliation and have had the
opportunity for input into that decision whether by
direct vote, or vote of their representative; and
(3) The local organization did not change materially
from that selected as the exclusive representative.
(b) If
the board finds that there has been a material change in
the local organization or that any of the conditions set
forth in (a) have not been met, the board shall require
an election to determine the wishes of the members of
the bargaining unit before the change shall be
recognized, regardless of the status of any contract
which may be in effect. The validity of any such
contract shall not be affected by any such inquiry or
vote.
(c) In
the event an employee organization is dissolved,
voluntarily surrenders its certification, loses a
certification election, or is decertified, its
representation as exclusive representative shall be
withdrawn by the board as contemplated by RSA 273-A:10,
VI(a).
Pub
301.05 Written Majority Authorization.
(a)
Petitions for certification may establish by
confidential authorization cards pursuant to RSA
273-A:10, IX that a majority of employees in a proposed
appropriate bargaining unit wish to be represented by a
designated employee organization for the purposes of
collective bargaining. Such petitions shall be referred
to as “written majority authorization petitions” or “WMA
petitions.” The election process described in Pub 303
shall not apply to WMA petitions except as provided
under Pub 301.05 (l).
(b) A
WMA petition shall not be filed in the case of an
existing bargaining unit with a duly certified and
lawfully recognized incumbent exclusive representative.
(c)
The board shall determine the appropriate bargaining
unit in the case of WMA petitions pursuant to RSA
273-A:8 and Pub 302.01.
(d)
Authorization cards shall be dated within the 6 months
preceding the date on which the cards are offered to
establish majority and exclusive representative status.
Authorization cards dated prior to this time period
shall be rejected and shall not be used to establish
written majority authorization. Authorization cards
shall be deemed and treated as confidential when filed
with the board or with a neutral third party pursuant to
Pub 301.05 (j)(1) or (j)(4).
(e)
Authorization cards shall, at a minimum:
(1)
Disclose the purposes for which they were solicited;
(2)
List the name of the labor organization or employee
group soliciting the authorization card;
(3)
Bear the signature and typewritten or printed name of
the employee;
(4)
State the date the signature was executed;
(5)
Contain the statement: “This card may be used to
establish that a majority of employees in an appropriate
bargaining unit request that the named labor
organization or employee group be certified to act as
their exclusive agent and representative for the
purposes of collective bargaining pursuant to RSA
273-A:10, IX or to request an election pursuant to Pub
301.01 and RSA 273-A:10, I among employees to determine
whether a majority of eligible employees wish to have
the named labor organization or employee group as the
bargaining unit’s exclusive agent and representative;”
and
(6) Display a copy of the State seal and the designation
“Public Employee Labor Relations Board.”
(f)
The board shall publish an authorization card form which
shall be used for the purposes of Pub 301.05. Employee
organizations, employee groups and others utilizing
authorization cards may reproduce the board’s
authorization card form on cards no smaller than 3” by
5” and include a copy of their logo or emblem on the
card providing that the logo or emblem is smaller in
size than the seal of the State of New Hampshire.
(g) If
an employee has signed more than one authorization card
and has signed a statement repudiating a previously
signed authorization card, the board shall recognize the
last dated card or statement.
(h)
WMA petitions shall be executed and contain the
statement that the petitioner seeks to be certified
without an election and that the WMA petition is
supported by authorization cards executed by a majority
of the employees in the proposed bargaining unit.
(i)
WMA petitions shall otherwise comply with Pub 301.01.
(j)
The process for determining whether a majority of
employees in an appropriate bargaining unit have
authorized an employee organization to act as their
exclusive representative shall be as follows:
(1)
The WMA petition may be filed with the board and shall
state the public employer’s agreement or disagreement
with the proposed bargaining unit. The petitioner shall
at the same time provide a copy of the WMA petition to
the public employer electronically unless electronic
transmission is not available and by regular mail or by
hand delivery. The WMA petition shall include a
statement that the petitioner seeks to have the board
examine the authorization cards. Absent exceptional
cause, the board shall complete its examination of the
authorization cards within 10 days of the filing of the
petition unless further time is required to conduct
hearings concerning matters such as, but not limited to,
the appropriateness of the proposed bargaining unit;
(2) Within 3 business days of the date the petitioner
files the WMA petition with the board, the public
employer shall file with the board a WMA petition
employee list which shall include the name, position,
date of hire, and current employment status, including
probationary status, of all employees in the proposed
bargaining unit;
(3)
The board shall prepare a signed written report on a
form published by and available at the board certifying
the result of its confidential inspection of the
authorization cards, and including the following
information:
a. The
name of the individual who performed the confidential
inspection of the authorization cards;
b. The name of the public employer and employee
organization;
c. The location where and the date when the
authorization card confidential inspection was
conducted;
d. A description of the bargaining unit including the
positions contained in the unit and the number of
employees in each position; and
e. The statement that the authorization cards have been
examined in accordance with the procedures and
requirements set forth in Pub 301.05 and the result of
the inspection; and
(4)
Alternatively to (1), (2) and (3), the petitioner and
the public employer may agree to have a neutral third
party other than the board examine the authorization
cards through the following procedures:
a. The
petitioner shall provide a copy of the WMA petition to
the public employer electronically, unless electronic
transmission is not available, and by regular mail or by
hand delivery. The WMA petition shall include a
statement that the petitioner seeks to have the
authorization cards examined by a neutral third party
other than the board;
b. The
parties shall have 10 days from the employer’s receipt
of the WMA petition to appoint an agreed upon neutral
third party. In the absence of such agreement, the
petition shall be filed with the board and processed in
accordance with Pub 301.05 (j) (1), (2) and (3);
c.
Within 3 business days of the date the WMA petition is
filed with a neutral third party other than the board,
the public employer shall file with the neutral third
party a WMA petition employee list which shall include
the name, position, date of hire, and current employment
status, including probationary status, of all employees
in the proposed bargaining unit. Absent exceptional
cause, the neutral shall complete the examination of the
authorization cards within 10 days of the neutral’s
appointment;
d. The
WMA petition shall include the following instructions to
a neutral third party selected pursuant to Pub 301.05
(j)(4)b:
1. The
neutral third party shall examine the original
authorization cards in a confidential manner to
determine whether a majority of the employees in the
proposed bargaining unit have signed authorization
cards;
2. In
all cases, the neutral third party shall prepare and
sign a written report containing the information
required under Pub 301.05 (j)(3) documenting the result
of the neutral’s examination of the authorization cards;
and
3. The
neutral third party shall provide the original written
report and the original authorization cards to the
petitioner, and a copy of the original written report to
the public employer; and
e. Within 10 business days of the issuance of the
neutral’s written report the petitioner shall file with
the board the neutral’s written report, the WMA
petition, and the authorization cards.
(k)
The public employer and the petitioner shall file with
the board any objections or exceptions to a WMA petition
and/or the neutral third party’s examination of the
authorization cards within 15 days of the date the WMA
petition is filed with the board under Pub 301.05 (j)(1)
or Pub 301.05 (j)(4) e. The board shall conduct a
further examination of the authorization cards and
report to the parties the result of this review in its
written decision addressing any objections or exceptions
that have been filed.
(l)
The RSA 273-A:10, III election bar shall not apply to
WMA petitions. The petitioner may proceed to an election
in the event of a board decision that the petitioner did
not obtain written majority authorization from
bargaining unit employees by filing a written request
for election on a form provided by the board within 10
calendar days of the date of the board’s decision. The
request for election shall be based upon the appropriate
bargaining unit as determined by the board and must be
supported by a 30% showing of interest under Pub
301.01(f) and (h) and is otherwise subject to board
rules and the provisions of RSA 273-A:1 et. seq.
applicable to petitions for certification as the
exclusive representative of a bargaining unit having no
certified representative. Authorization cards initially
examined to support a WMA petition may be used to
establish the requisite 30% showing of interest required
by Pub 301.01 (f) and (h) and shall meet the
requirements of Pub 301.01 (l) on the date they are
reinspected to support a request for an election. This
provision does not authorize the conduct of an election
which would otherwise by barred by the provisions of RSA
273-A:10, III.
(m) In
contested cases, the board shall not issue a
certification of an exclusive representative and an
order to negotiate until after the time to file a motion
for rehearing under Pub 205.02 has expired and any
timely motion for rehearing has been decided.
PART Pub 302 DETERMINATION OF APPROPRIATE
BARGAINING UNITS
Pub
302.01 Mutually Agreed Bargaining Units.
(a) An
employee organization seeking to become the exclusive
representative of a bargaining unit shall, in
petitioning the board for an election under Pub 301.01,
identify how employees shall be grouped together for the
purpose of collective bargaining. Before a hearing is
ordered on their petition, that employee organization
shall contact the public employer with the intent to
reach agreement with the public employer whose employees
it seeks to represent. If the employee organization
succeeds in reaching agreement with the public employer
on this question, the petition required by Pub 301.01
shall contain a statement to that effect signed by both
parties.
(b)
Discussions between a public employer and an employee
organization pursuant to (a) above shall not be
construed as evidence of recognition by the public
employer of any bargaining rights in the employee
organization. Agreement between a public employer and an
employee organization shall not prejudice the rights of
any intervenor not participating in such discussions and
shall not be binding on the board.
Pub
302.02 Additional Criteria for Determining
Appropriate Bargaining Units.
(a) An appropriate bargaining unit shall be
characterized by the existence of a community of
interest shared by its members.
(b) In determining the appropriate bargaining
unit, the board shall consider the following as evidence
of a community of interest, in addition to the elements
set out in RSA 273-A:8, I(a) through (d):
(1) A
common geographic location of the proposed unit;
(2) The presence of:
a.
Common work rules and personnel practices; and
b. Common salary and fringe benefit structures; and
(3)
The self-felt community of interest among employees.
(c) In addition to considering the principle
of community of interest, the board shall also consider:
(1)
The effect of forming any particular bargaining unit on
the efficiency of government operations as contemplated
in RSA 273-A:1, XI; and
(2) The potential for employees within the proposed
bargaining unit experiencing a division of loyalties
between the public employer and the employees' exclusive
representative.
Pub
302.03 Hearing on Unit Determination.
The board shall order a hearing prior to determining a
contested bargaining unit for which an election may be
held. Hearings under this section shall be held in
accordance with the applicable provisions of Pub 200.
Pub
302.04 Decision and Order.
The
board shall, as expeditiously as possible, based on
criteria enumerated in RSA 273-A:8, I (a)-(d) and Pub
302.02, determine the appropriate bargaining unit,
notify the parties and intervenors, if any, of its
decision, andissue an order of election when appropriate
under Pub 303.01.
Pub
302.05 Modification of Bargaining Units.
(a)
Where the circumstances surrounding the formation of an
existing bargaining unit are alleged to have changed, or
where a prior unit recognized under the provisions of
RSA 273-A:1 is alleged to be incorrect to the degree of
warranting modification in the composition of the
bargaining unit, the public employer, or the exclusive
representative, or other employee organization if the
provisions of section (d) are met, may file a petition
for modification of bargaining unit.
(b) A
petition shall be denied if:
(1)
The question is a matter amenable to settlement through
the election process; or
(2) The petition attempts to modify the composition of a
bargaining unit negotiated by the parties and the
circumstances alleged to have changed, actually changed
prior to negotiations on the collective bargaining
agreement presently in force.
(c)
The petition shall set out the same categories of
information, including the present bargaining unit
positions, which is required of a petition filed under
Pub 301.01 except no showing of interest shall be
required to accompany a petition filed under this
section. The petition shall set out a clear and concise
statement of the circumstances prompting the filing of
the petition. This information may be provided on a
modification petition form, copies of which may be
obtained from the board pursuant to Pub 103.01.
(d) An
employee organization, other than the exclusive
representative, may file a petition for modification
only during time periods or under conditions when it
would be entitled by statute or these rules to petition
for an election to be certified as the exclusive
representative. At other times, only the employer or
exclusive representative may file a petition for
modification of a bargaining unit.
PART
Pub 303 ELECTIONS
Pub
303.01 Order for Election.
(a)
When an election sought under Pub 301.01 is in order,
the board shall, after determining the appropriate
bargaining unit according to the criteria enumerated in
RSA 273-A:8, I (a) through (d) and Pub 302.02, issue an
order for election naming the employee organizations
which shall appear on the ballot and describing the
bargaining unit for which the election shall be held.
The order for election shall be delivered to the
petitioner, to any intervenor determined by the board to
be qualified to participate in the election, and to the
public employer for whose employees the election is
being held.
(b)
Upon receiving the order for election, the public
employer shall immediately forward to the board, and to
the parties who shall appear on the ballot, a complete
list of the names and home addresses of the employees in
the bargaining unit agreed to by the parties or
previously determined by the board to be eligible for
membership as a result of a unit determination hearing.
The public employer shall update this voting list by
delivering to each party receiving a copy of the
original list the name and classification of any person
newly eligible for inclusion in the bargaining unit up
to the end of the eligibility period agreed to by the
parties or, failing agreement, determined by the board
at the pre-election conference.
(c)
Orders of election shall not be final orders of the
board subject to appeal until after the election is
conducted and the results are certified because grounds
for appeal might become moot consequential to the
election results.
Pub
303.02 Pre-Election Conference.
(a) A
representative of the board shall, as expeditiously as
possible, conduct a pre-election conference at which the
election date, eligibility period for voting by new
employees, voting times, polling places and other
election procedures not inconsistent with RSA 273-A or
these rules shall be determined. Every effort shall be
made to arrange voting procedures agreeable to all the
parties to the election.
(b)
Voting shall be scheduled during the work day whenever
possible and polling places and voting times shall
permit reasonable access by voters, so that no voter
will have to travel an unreasonable distance to vote.
Public employers shall grant release time to their
employees so that they can vote during their work day or
shift.
Pub
303.03 Eligibility to Vote; Access to Voters.
(a)
All employees eligible to belong to the bargaining unit
up to the end of the eligibility period agreed to by the
parties, or failing agreement, determined by the board
at the pre-election conference, shall be eligible to
vote. Disputes regarding the accuracy of the voting list
shall be raised at the pre-election conference. The
board shall resolve any disputes regarding the accuracy
of the updated list prior to the day scheduled for the
election.
(b)
All employee organizations listed on the ballot shall
have access to employees at their general places of
work. Access shall be as complete as possible consistent
with the public employer's interest in maintaining the
efficiency and discipline of its staff.
(c) As
a minimum, employee organizations listed on the ballot
shall have the following access through the facilities
of the public employer:
(1)
The right to post notices and informational material on
places maintained at or near employees' work stations
for such purposes;
(2) The right to reasonable use of the employer's normal
mail distribution facilities which shall mean, by way of
example, but not limitation:
a. Use
that does not overburden the means of distribution so as
to interfere with the employer’s usual usage for
administrative purposes; and
b.
Parity of access to the employer's mail distribution
system for advocacy purposes; and.
(3)
The right to use any premises which the employer has
available for public meetings for the purpose of meeting
with employees during non-working hours, subject to the
same restrictions of scheduling as imposed on other
users of the premises.
(d)
This section shall not be construed in any way to
inhibit any organization's access to employees outside
of work hours and away from places of work.
Pub
303.04 Notice of Election.
(a)
Upon conclusion of the pre-election conference, the
board shall issue a notice of election to the parties to
the election, including the affected public employer.
(b)
The notice of election shall set out:
(1)
The date, time and place of the election;
(2)
The hours the polls shall be open;
(3)
The classifications of the employees in the bargaining
unit for which the election is to be conducted;
(4) A
list of the names of the employees eligible to vote, in
alphabetical order;
(5)
The rules governing eligibility to vote as decided by
the parties at the pre-election conference; and
(6) A
sample ballot.
(c)
The public employer shall display copies of the notice
of election and the sample ballot at work locations
where notices are normally posted for employees in the
proposed bargaining unit on the next working day
following receipt of the notice. When it is necessary
for a public employer to display copies of the notice of
election and the sample ballot 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 notice of
election and the sample ballot shall be mailed to those
remote locations no later than the next working day
following receipt of the notice of election and the
sample ballot. The copies so mailed shall be displayed
at those remote locations on the same day they are
received. Except in the event of a run-off election,
this notice shall be posted for at least 7 days prior to
the election.
Pub
303.05 Board's Representative to Conduct Election.
All elections shall be conducted by a representative of
the board, whose determination of all questions arising
in the course of the election may be challenged under
the procedures set out in Pub 303.11. The representative
of the board shall be a member of the board, an employee
of the board, a neutral third party appointed by the
board on its own motion or a neutral third party
mutually selected by the parties and designated by the
board as its representative, as the board shall direct.
Pub
303.06 Ballots.
All elections shall be by secret ballot, forms for which
shall be prepared and issued by the board. Ballots shall
contain the name of each representative and properly
qualified petitioner and intervenor along with the
choice of "no representative" displayed horizontally
across the ballot. The positions of the various options
on the ballot shall be randomly selected by the
executive director or the board's staff.
Pub
303.07 Polling Area; Observers.
(a)
Prior to the commencement of the election, the
representative of the board shall designate the polling
area or areas and no electioneering of any kind shall be
permitted within these areas during the election. Any
violation of this rule shall be grounds for setting
aside the election if the board determines based on a
hearing that the violation has affected the outcome of
the election.
(b)
Each party to the election may, if it chooses, be
represented at the polling places by one representative
for the purpose of observing the conduct of the election
and the count of the ballots. Employer representatives
shall not be on the list of eligible voters and shall
not be supervisors of the persons voting. No employee
shall suffer loss in pay or benefits for time spent in
voting or observing the conduct of the election and the
count of the ballots as an employee representative under
this section.
(c)
Each representative shall certify the accuracy of the
vote count determined by the representative of the board
on a Certification on Conduct of Election form to be
supplied by the board and returned to the board
representative at the election.
(d)
The Certification on Conduct of Election shall provide
the following:
(1).
Headings and blanks for entries sufficient to identify
time, place and parties to the election;
(2). A
statement of certification as to the fairness of the
conduct of the election observed; and
(3).
Spaces for signatures of party representatives and the
board representative so certifying.
(e) If
an election observer should fail to appear or fail to
certify the accuracy of the election results, the
board's representative shall enter "Not Present" or
"Refused to Sign" in the appropriate signature block.
Pub
303.08 Challenges; Objections to Conduct at Polling
Area(s).
(a)
Any prospective voter may be challenged for
ineligibility before voting. No voter may be challenged
for ineligibility after voting. A prospective voter
challenged for ineligibility shall be permitted to vote
but that person's vote shall be sealed by the voter in
an unmarked envelope which shall be placed in another
envelope marked with the name of the voter, the name and
affiliation of the challenger and the reasons for the
challenge. The marked envelope shall be delivered to the
representative of the board, who shall deliver it to the
board.
(b)
Challenges may also be made for the miscounting of votes
for such reasons as, but not limited to arithmetic
error, mismarking or damaged illegible ballot. The board
shall determine if the validity of any challenged votes
is sufficient to affect the results of the election or
whether one party will prevail without the challenged
ballot. If more than one voter is challenged for cause,
the board shall maintain the confidentiality of the
votes cast as is not possible if one challenged ballot
will decide the election.
(c)
Objections to conduct at a polling area that might
affect the outcome of the election shall be filed with
the representative of the board before the ballots have
been counted.
(d)
Challenges and objections may be withdrawn at any time
by the party making them.
Pub
303.09 Majority Vote Required; Run-Off Election.
(a) In
all elections, the majority of the votes properly cast
shall determine whether any employee organization shall
become the exclusive representative of the bargaining
unit for which the election was held, and which employee
organization it shall be.
(b)
In elections conducted for bargaining units proposed to
be composed of professional and non-professional
employees, the ballots for both groups shall be kept
separate and shall be counted separately. A majority of
both groups shall be required to vote for inclusion in
a combined professional and non-professional bargaining
unit before any employee organization shall be certified
for such a unit.
(c) If
there are more than 2 choices or options on the ballot
and no choice receives a majority of the votes properly
cast, the board, shall, after disposing of all
challenges and objections to the conduct of the
election, order a run-off election to be held as
expeditiously as possible between the 2 options
receiving the most votes, as required by 273-A:10, IV.
If there is a tie for second place, all options
receiving the second highest number of votes shall be
placed on the runoff ballot together with the option
receiving a plurality of votes. If there is a tie for
first place, only options tied for first place shall be
placed on the runoff ballot.
(d) If
2 options appear on the ballot and each receives the
same number of votes so that neither has received a
majority, no election shall be scheduled consequential
to the tied election.
(e)
All employees eligible to belong to the bargaining unit
up to the end of the eligibility period shall be
eligible to vote in the run-off election. The public
employer shall update the voting list by delivering to
each party receiving a copy of the original list the
name and classification of any person newly eligible for
inclusion in the bargaining unit up to the end of the
eligibility period for the run-off election.
Pub
303.10 Report of Election.
Upon the conclusion of the election, the representative
of the board shall prepare a report of election setting
forth the results of the election. In cases where a
voter or a ballot has been challenged or an objection is
made to conduct at the polling area, the report shall
set out a clear and concise statement of the reason for
the objection or challenge, together with the name of
the challenged voter and the name and affiliation of the
person filing the challenge or objection. The
representative of the board shall deliver a copy of this
report to the parties to the election when the report is
filed with the board.
Pub
303.11 Objections to the Conduct of an Election and
to Conduct Affecting the Outcome of an Election;
Hearing on Challenges and Objections.
All objections to the conduct of an election by the
representative of the board and to conduct affecting the
outcome of an election not occurring at the polling area
shall be filed with the board within 5 days after the
report of election is filed under Pub 303.10. If
challenges or objections are filed, the board shall
conduct any hearing it has directed within 10 days of
the date they are filed.
Pub
303.12 Certification of Election Results.
After the board has disposed of any challenges and
objections filed under Pub 303.10 and Pub 303.11 and
after the time for rehearing under Pub 205.02 has
passed, the board shall issue a decision and order
setting forth the results of the election and certifying
the employee organization that has been elected the
exclusive representative of the bargaining unit for
which the election was held, or certifying that a
majority of the employees properly voting in the
election voted against representation by any employee
organization.
Pub
303.13 Absentee Ballots.
(a)
During the course of the pre-election conference
conducted by a representative of the board, the parties
shall disclose the name and circumstances involving any
eligible voter in the bargaining unit known to be
scheduled to be away from the work place and/or their
residences at the directive or convenience of the public
employer or due to circumstances beyond their control on
the date of the election such as to make it impossible
for them to be able to vote during those times when the
polls are open. The prospective eligible voters
identified may be eligible to vote by absentee ballot
according to the procedures set forth herein. Requests
for absentee ballots from eligible voters who are not
scheduled to work on the day or shift when the election
is conducted or who voluntarily absent themselves by
sufficient distance from the election site during the
time the election is conducted shall not qualify to vote
by absentee ballot, because they shall not be deemed to
be unable to vote because of the mandates of the public
employer or because of circumstances beyond their
control.
(b)
Any employee eligible to vote in the election who has
been identified by the parties at the pre-election
conference as potentially eligible to vote by absentee
ballot or any eligible employee who believes he or she
should have been so identified may file a written
request with the board stating a desire to vote by
absentee ballot.
(c)
That written request shall contain, as a minimum, the
following information:
(1)
The applicant's name;
(2)
The applicant's residential mailing address;
(3)
The reason the applicant is seeking to vote by absentee
ballot such as a meeting out-of-state directed by
employer, disabling medical condition, special
assignment directed by the employer causing absence from
the polling area; and
(4)
The date of the request which contains this information.
(d)
The board shall process requests to vote by absentee
ballot by examining the request for conformity with the
reason(s) for the prospective voter's projected absence
from the polling area and confirming those reasons with
the public employer.
(e)
Completed absentee ballots received at the board's
offices at least 24 hours prior to the scheduled
starting time of the election and absentee ballots
received by the board representative conducting the
election within 24 hours of the scheduled starting time
of the election shall be processed at the commencement
of the election as follows:
(1)
The board representative shall present the prepared
ballot box to the election observers and provide them
with the opportunity to inspect the ballot box to
confirm that it is empty, secure and is ready to
receive ballots; and
(2)
Before the envelopes containing absentee ballots are
opened and the ballots placed in the ballot box, the
board representative shall provide the election
observers with the opportunity to state any objections
or challenges they may have to the casting of the
absentee ballot(s). If there are no objections, the
board's representative shall remove each absentee ballot
from the mail envelope and inside ballot envelope and
place the ballot into the ballot box in a manner that
preserves the anonymity of the absentee voter. If there
are objections to the eligibility of a voter or to the
casting of any absentee ballot, those objections shall
be processed in accordance with Pub 303.08. Any
objection or challenge to an absentee ballot shall be
raised before the mail envelope is opened and the ballot
cast into the ballot box by the board's representative
at the election.
Pub
303.14 Mail Balloting Elections.
(a)
The board shall conduct mail balloting elections in
circumstances when on-site balloting is in impracticable
because:
(1)
Eligible voters are so dispersed across the state that
they do not associate or converse with each other; and
(2) There are a multitude of work-sites or there are no
central work-sites.
(b) In
the event mail ballots are used in the election, the
notice of election provided in Pub 303.04 shall so
state, and said notice shall also indicate the date the
ballots shall be mailed or distributed to the
prospective voters and the latest date on which the
completed ballots shall be received at the offices of
the board for purposes of being counted.
(c)
The format of mail ballots shall be the same as provided
in Pub 303.06 unless:
(1)
The parties agree to a changed format; and
(2)
The parties first confer with the board or its executive
director.
(d)
Mail ballots shall be returned to the board in 2
envelopes as follows:
(1)
The first and smaller envelope shall contain the voted
ballot and will be marked or designated "Ballot
Envelope" with such additional instructions thereon as
are deemed necessary by the executive director or the
board;
(2) The second and larger envelope shall be marked "Mail
Envelope" in which the ballot envelope is placed and
mailed to the board; and
(3) The mail envelope shall be pre-addressed and postage
paid and shall have a space thereon which identifies the
voter by name and employer and/or such additional
identifying marks as the board shall, from time to time,
deem necessary.
(d)
Voter failure to comply with the identity requirements
on the mail envelope ordestruction of any identifying
mark thereon shall be sufficient cause to disqualify the
ballot contained therein from being counted.
(e)
When the mail ballot envelopes are received at the
offices of the board, they shall be identified and
segregated according to the bargaining unit involved. At
the time designated for counting the ballots, each mail
envelope shall be authenticated by comparison with the
list of eligible voters, and the ballot envelope shall
be removed from the mail envelope and deposited in a
suitable container along with other ballot envelopes
from the same election in order to preserve the
anonymity of the voter. Thereafter, all ballot envelopes
shall then be opened, the ballots removed and counted at
random, and the results recorded as provided in Pub
303.07.
(f)
All challenges to mail ballots which are based on or
concern the identity of the voter or voter eligibility,
and which are made pursuant to Pub 303.08, shall be
raised prior to the removal of the ballot envelope from
the mail envelope.
PART
Pub 304 UNFAIR LABOR PRACTICE
Pub
304.01 Complaint.
Any public employer, any public employee, any employee
organization under RSA 273-A or any party coming under
the jurisdiction of RSA 273-C that believes an unfair
labor practice has been committed against it may file a
complaint alleging a violation of RSA 273-A:5 or RSA
273-C:6, respectively.
Pub
304.02 Interim Orders.
(a)
When the board considers it to be in the public
interest, it shall issue a cease and desist order under
RSA 273-A:6, III pending a hearing under Pub 201.05.
(b)
The board shall issue such an order for reasons to
include, but not limited to:
(1)
Protection of the public safety;
(2) To
avoid prejudice to one party or another; or
(3) To
avoid irreparable harm.
(c)
Following the hearing and pending final disposition of
the complaint, it shall petition the superior court in
the county where any unlawful act is alleged to have
occurred for an injunction when the board's interim
order has not been honored and irreparable harm will
result.
(d)
Pending final disposition of a complaint relating to
conduct sufficiently serious to affect the outcome of an
election, the board shall stay the election or withhold
certification of the election results under Pub 303.12.
Pub
304.03 Decision and Order.
(a)
The board shall issue its decision and order within 45
days of the hearing on a complaint, or if the complaint
is uncontested, within 45 days of the filing of the
complaint. All decisions of the board shall be
accompanied by express findings of fact and rulings of
law. The board shall dismiss any complaint of a
violation alleged to have occurred more than 6 months
prior to the filing of the complaint with the body
having original jurisdiction of that complaint, as
required by RSA 273-A:6, VII and RSA 273-C:7, VII.
(b) If
the board finds that an unfair labor practice has been
committed or if the unfair labor practice complaint is
uncontested, it shall issue a cease and desist order and
shall order such relief as necessary to eliminate the
consequences of the unfair labor practice. The board
shall not be limited to the prayer for relief contained
in the complaint. When warranted by the circumstances of
a case, the board shall take continuing jurisdiction in
that case, requiring periodic reporting of compliance
under RSA 273-A:6, VI or RSA 273-C:7, VI.
(c)
Circumstances warranting continuing jurisdiction shall
include but not be limited to:
(1)
The need to insure compliance with a board order; or
(2)
The existence of future contingencies that might effect
the performance of the board's order.
(d) If
the board finds that the complaint is not supported by
the weight of the evidence, it shall issue an order
dismissing the charge.
(e)
If, after issuing a decision and order in a case, the
board receives pleadings from a complaining party
alleging non-compliance with that decision and order,
which decision and order has not been appealed within
the time limits of RSA 541:6, and after investigation
and/or hearing, determines that there is substance to
the allegation of non-compliance, the board shall
petition the superior court for the county in which the
party sought to be enjoined is principally located for
such order of the court as determined necessary to
compel obedience with its order, as contemplated by RSA
273-A:7 or RSA 273-C:8.
PART
Pub 305 IMPASSE RESOLUTION
Pub
305.01 Request for Intervention.
The parties to a labor dispute arising under RSA 273-A
may request the board to mediate or to undertake
fact-finding under RSA 273-A:12, I at any time. Unless
the request is made within 60 days of the public
employer's budget submission date, the board shall
refuse such intervention until it determines that a
reasonable period of negotiation has elapsed. The board
shall intervene itself, or through a neutral third party
appointed by the board. Persons seeking inclusion on the
list of neutrals maintained by the board under RSA
273-A:2, V shall file with the board a curriculum vitae
inclusive of a list and description of their education ,
credentials, training, experience, and fee schedule and
such persons whom the board finds to possess suitable
qualifications to serve as a neutral in public sector
labor disputes shall be included on the list. Before
appointing any neutral party to act on its behalf under
this rule, the board shall first attempt to have a
neutral party chosen by the parties to the dispute.
Pub
305.02 List of Mediators, and Fact-Finders and
Arbitrators.
(a)
The board shall maintain as referenced in Pub 305.01 a
list of neutrals, inclusive of mediators, fact finders
and arbitrators, and of organizations offering the
services of mediators, fact finders and arbitrators from
which it shall make appointments. The parties may, under
RSA 273-A:2, select a third party not on the list
maintained by the board.
(b)
When a party requests the services of an arbitrator to
be appointed from the list maintained by the board, it
shall provide the following information:
(1)
Its name, address, telephone number, and its counsel or
representative, if different from the requesting party;
(2)
The name of the opposite party, its address, telephone
number and its counsel or representative if different
from the officer or responsible party named in the
request;
(3)
The nature of the grievance inclusive of its subject
matter, the contract article(s) alleged to have been
violated and the date it was originally filed; and
(4)
Any agreements as to the identity and appointment of an
arbitrator.
(c)
The information required in order to request the
services of an arbitrator may be provided on a request
for appointment of arbitrator form, copies of which may
be obtained from the board pursuant to Pub 103.02.
Pub
305.03 Notice of Impasse; Timetable for Mediation and
Fact-Finding.
(a) If
the parties to a labor dispute have not reached
agreement on a contract within 90 days prior to the
public employer's budget submission date, the parties
shall so inform the board. Unless the parties have
chosen a mediator, they shall petition the board to
appoint a mediator to be available to begin mediation 60
days prior to the public employer's budget submission
date. Mediation shall continue as long as the board
determines mediation is necessary considering the
likelihood of resolution. The board shall replace a
mediator with another chosen by the parties or, failing
agreement, appointed by the board whenever it determines
this to be in the public interest.
(b) By
example but not limitation, a mediator shall be assigned
by the board:
(1)
When time is of the essence because of the proximity of
the budget submission date; or
(2) To
avoid one party or the other stalling the process by
refusing to choose a mediator.
(c) If
mediation does not result in agreement within 50 days
prior to the public employer's budget submission date,
the parties shall so inform the board. Unless the
parties have chosen a fact-finder, they shall petition
the board to appoint one to be available to begin
fact-finding 45 days prior to the public employer's
budget submission date. The fact-finder shall make and
report findings of fact to the parties and to the board,
together with recommendations for resolving each of the
issues remaining in dispute, within 30 days of
appointment unless the board otherwise directs. The
parties shall notify the board of their acceptance or
rejection of the fact-finder's report within 10 days
after the report is filed.
(d)
When it appears that extension might result in
resolution of negotiations, the board shall permit
mediation to extend beyond the public employer's budget
submission date and, when it appears that late
submission will be productive of a settlement, interim
or permanent, the board shall permit the fact-finder to
submit his report after the public employer's budget
submission date.
(e) No
party and no person acting on behalf of a party shall
make public any of the findings or recommendations
contained in the fact-finder's report while the parties
are considering the report. Publication of a
fact-finder's report before the parties have considered
it for 10 days shall be treated as an unfair labor
practice under RSA 273-A:5, I(e) and II(d) as well as a
violation of RSA 273-A:12, for which the board shall
grant appropriate relief.
(f)
The parties shall inform the board whenever they shall
have ceased negotiating, giving their reasons for having
ceased negotiations, and they shall likewise inform the
board when negotiations are reopened.
Pub
305.04 Petition for Appointment of Mediator or
Fact-Finder.
(a) A
petition for appointment of mediator or fact-finder,
referred to in Pub 305.03(a) and (b), shall be signed by
the chief negotiator of the requesting party or parties.
(b)
The petition shall provide:
(1)
The name, address, affiliation and telephone number of
the responsible officer and chief negotiator, if
different, of both bargaining teams.
(2) The name, business address and telephone number of
the party's or parties' preference for a mediator or
fact-finder if any;
(3) A statement, titled "Issues in Controversy", setting
out the unresolved issues in dispute as of the date of
the petition; and
(4) If the statement of unresolved issues is mutually
agreed upon, it shall be signed by the responsible
officers or chief negotiators of both bargaining teams.
(c)
The information required in order to request the
services of a mediator shall be provided on a mediation
request form pursuant to Pub 103.02, copies of which may
be obtained from the board.
(d)
The information required in order to request the
services of a fact finder may be provided on a request
for appointment of fact finder form pursuant to Pub
103.02, copies of which may be obtained from the board.
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