PART Pub 201 PRELIMINARY MATTERS AND CONFLICT OF INTEREST
Pub 201.01 Documents.
Pub 201.02 Unfair Labor Practice Complaint.
Pub 201.03 Answer.
Pub 201.04 Amendments and Withdrawals.
Pub 201.05 Unfair Labor Practice Hearing.
Pub 201.06 Hearing Required.
Pub 201.07 Notice of Hearings.
Pub 201.08 Motions to Continue.
Pub 201.09 Duration of Hearing.
Pub 201.10 Petitions to Intervene.
Pub 201.11 Consolidation.
Pub 201.12 Public Hearings.
Pub 201.13 Communication with Board on Pending Matters.
Pub 201.14 Conflict of Interest.
Pub 201.15 Presiding Officer.
Pub 201.16 Public Docket.
Pub 201.17 Filing Fee.
(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, [email protected] 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.
(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.
(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.
(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.
(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.
(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 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.
(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.
(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.
(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 201.13 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.
(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 201.17 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.