Title 4 Part 201

Scope

ordinance or resolution, pursuant to section 212 of the act, and with respect to which

there is in effect a determination by the board that such provisions and procedures are

substantially equivalent to the provisions and procedures set forth in the act and in

pertinent rules with respect to the State (see Part 203 of this Chapter); and

title 12 generally of the Administrative Code of the City of New York.

government which has acted through its legislative body pursuant to section 206.1 of the act and

established an impartial agency to administer procedures not inconsistent with section 207 of the

act (see Part 202 of this Chapter).

Petition; filing

act (hereinafter called a petition for certification), or a petition alleging that an employee

organization which has been certified or is being currently recognized should be deprived of

representation status as to all or part of a unit (hereinafter called a petition for decertification),

may be filed by one or more public employees or any employee organization acting in their

behalf, or by a public employer, provided that individual employees may not file a petition for

certification.

employee organization to clarify whether a position is encompassed within the scope of an

existing unit (hereinafter called a unit clarification petition), or to determine the unit placement

of a position (hereinafter called a unit placement petition). The filing and processing of the

petition shall be in accordance with sections 201.5(c), 201.5(d), 201.7, 201.8(a) and (g), and

201.10 of this Part, and Part 212. Section 201.4 of this Part shall not apply. In determining the

unit placement of a position, the administrative law judge shall consider whether the placement

would be consistent with the criteria set forth in section 207 of the act. The administrative law

judge may decline to make any clarification or placement not otherwise consistent with the

purposes or policies of the act. Exceptions to any determination of the administrative law judge

may be filed pursuant to Part 213.

filing, a signed original of the petition shall be filed with the director. In electronically filed

cases, a signed copy will be submitted. Prior to an administrative law judge issuing a decision, a

petition may be withdrawn only with the consent of the director. After the issuance of a decision

by the administrative law judge, the petition may be withdrawn only with the consent of the

board. Whenever the director or the board, as the case may be, approves withdrawal of any

petition, the case shall be closed.

Time for filing of petitions (View chart)

120 days after a public employer has been asked to recognize an employee organization, if the

request has not been denied and no employee organization has been recognized or certified as

majority representative of any of the employees within the unit alleged to be appropriate. A

petition may be filed by the public employer within 120 days after receipt of a demand for

recognition. Unless filed by a public employer, such a petition shall be supported by a showing

of interest of at least 30 percent of the employees within the unit alleged to be appropriate.

organization within 90 days after it has been refused recognition by the public employer. Such a

petition shall be supported by a showing of interest of at least 30 percent of the employees within

the unit alleged to be appropriate.

notice as described in section 201.6 of this Part, or receipt of written notice, that another

employee organization has been recognized. Such a petition shall be supported by a showing of

interest of at least 30 percent of the employees in the existing unit or the unit alleged to be

appropriate by the petitioner.

expiration, under section 208.2 of the act, of the period of unchallenged representation status

accorded a recognized or certified employee organization, provided, however, that a public

employer may not file a petition challenging the majority status of a recognized or certified

employee organization in an existing negotiating unit unless it has a demonstrable, good-faith

belief that the employee organization is defunct. If a public employer is not the petitioner, a

petition for certification or decertification shall be supported by a showing of interest of at least

30 percent of the employees in the unit for which certification has been granted, or of the unit

alleged to be appropriate by the petitioner. If the petition is solely one for decertification, it shall

be supported by a showing of interest of at least 30 percent of the employees in the existing unit.

A petition seeking to certify a fragment of an existing bargaining unit as a separate bargaining

unit shall be supported by a showing of interest of at least 30 percent of the unit alleged to be

appropriate.

than the recognized or certified employee organization and a petition for decertification may be

filed by one or more public employees, if no new agreement is negotiated, 120 days subsequent

to the expiration of a written agreement between the public employer and the recognized or

certified employee organization or, if the agreement does not expire at the end of the employer’s

fiscal year, then 120 days subsequent to the end of the fiscal year immediately prior to the

termination date of such agreement. Thereafter, such a petition may be filed until a new

agreement is executed. Such a petition shall be supported by a showing of interest of at least 30

percent of the employees in the unit already in existence or alleged to be appropriate by the

petitioner.

organization, other than the recognized or certified employee organization, or a petition for

certification may be filed by a public employee organization other than the recognized or

certified employee organization, commencing one year after such recognition or certification,

unless and until the recognized or certified employee organization has negotiated its first

collective bargaining agreement.

representation status of public employees made by a local government pursuant to section 212 of

the act may be filed together with a petition for review under section 203.8 of this Chapter. Such

a petition will not be processed unless the board determines that the continuing implementation

of the provisions and procedures of the local government has not been substantially equivalent to

the provisions and procedures set forth in the act and these rules. If a public employer is not the

petitioner, such a petition shall be supported by a showing of interest of at least 30 percent of the

employees in the unit deemed appropriate by the local government or an impartial agency.

Showing of interest

the director shall accept evidence of current membership. The director shall also accept dues

deduction authorizations, original designation cards, or petitions on a form prescribed by the

board, all of which were signed and dated within one year of their submission. A showing of

interest may consist of any combination of the foregoing evidence, membership lists, dues

deduction authorizations. Designation cards shall be submitted in alphabetical order.

The director may require that an alphabetized listing of the names of the signatories on

individually signed and dated petitions be filed within a reasonable period of time after

submission of the showing of interest petitions. If such an alphabetized listing is required, the

person or persons filing the listing shall simultaneously file with the director a signed attestation

that the listing sets forth only the names of the signatories on the showing of interest petitions.

sufficient is a ministerial act and cannot be reviewed by the board.

intervene, the movant, with the director simultaneously with the filing of the showing of interest.

Such declaration shall contain the following:

declarant’s authority to execute it;

inquiries, the persons whose names appear on the evidence submitted have themselves

signed such evidence on the dates specified thereon, and that the persons specified as

current members are in fact current members and, that inquiry was made regarding their

inclusion in the negotiating unit which is the subject of the representation petition. If the

declaration is upon inquiries the declarant has made, and not upon the declarant’s

personal knowledge, the declarant shall specify the nature of those inquiries; and

New York, which may include a fine or imprisonment, that the foregoing is true, and I

understand that this document will be filed in a proceeding before the Public

Employment Relations Board and may be filed in an action or proceeding in a court of

law.”

evidence submitted is accurate. If it is determined after investigation or hearing that the evidence

is fraudulent or that the declaration is false, such reasonable action as is appropriate to protect the

integrity of the procedures of the board in connection with the pending matter shall be taken.

Such a determination and such action taken shall be reviewable by the board pursuant to Part

213.

Contents of petition for certification; contents of petition for decertification; contents of petition to clarify existing unit or to determine unit placement of positions; response to petition

represent any public employees within the allegedly appropriate unit. If there is any

contract covering public employees in such unit, petitioner shall specify the duration, the

parties, and the unit involved in the contract, or attach a copy of the contract, and the date

of the commencement of the fiscal year of the employer;

in sections 201.3 and 201.4 of this Part, is met;

the date on which it asked the public employer for recognition;

organization, if any, with which it is affiliated does not assert the right to strike against

any government, to assist or participate in any such strike, or to impose an obligation to

conduct, assist or participate in such a strike; and

currently recognized by the public employer and which claim to represent the employees

in the unit involved, the expiration date of any contract covering such employees, and the

date of the commencement of the fiscal year of the employer;

recognized by the public employer have engaged in a strike or have caused, instigated,

encouraged or condoned a strike against any government;

in sections 201.3 and 201.4 of this Part, is met; and

organization;

certification or recognition, and the date thereof;

the position;

placement and the reasons therefor.

director within 10 working days after receipt of a copy of the petition from the director, with

proof of service of a copy thereof upon all other parties. The response shall include a specific

admission, denial or explanation of each allegation made by the petitioner, a description of the

unit claimed to be appropriate by the responding party for the purpose of collective negotiations

and a clear and concise statement of any other facts which the responding party claims may

affect the processing or disposition of the petition, along with a signed declaration of its

truthfulness by an identified representative of the responding party.

accordance with this section may be reasonably given by a party filing a petition for certification

or a petition under section 201.2(b) of this Part, which seeks a review of a managerial or

confidential designation made pursuant to section 201.9 of this Part, that party shall mail or, in

electronically filed cases, electronically mail, notice thereof in conformity with the director’s

determination to each managerial or confidential designee named in the petition and state in

writing to the director that it has mailed or electronically mailed the notice of filing in

accordance with this section. The notice shall include the date the petitioner filed the petition

with the director and a copy of the petition and such attachments thereto as pertain to the named

designee.

any time prior to the issuance of a decision, for good cause shown and under such terms as may

be deemed just and proper, filed and served consistently with the method of filing and service of

the original petition, and proof of service on all other parties provided, however, that petitions

filed pursuant to § 201.3 of this Part, or motions to intervene in such matters, may not be

amended where such amendment is not supported by the showing of interest accompanying the

original petition or motion to intervene.

Publication

following manner:

employer for not less than five working days;

employer for not less than one day;

one year preceding the recognition, claimed to represent any of the employees in the unit;

and

communication normally in use for communications between the public employer and its

employees.

organization may do so.

into pursuant thereto will bar a petition for certification or decertification unless the petitioner

has received written notice of such recognition more than 30 days prior to the filing of the

petition.

Notice of pending petitions

Upon the filing of a petition under this Part, notice thereof, including the date when such petition

was filed, the name and address of the petitioner, the name and address of the public employer

involved, and the unit claimed to be appropriate shall be maintained by an agent of the board on

a public docket to be kept by the board at its principal office.

Investigation and election

all questions concerning representation, including, if applicable, whether the showing of

interest requirement, as set forth in sections 201.3 and 201.4 of this Part, has been

satisfied; whether more than one employee organization seeks to represent some or all of

the employees in the allegedly appropriate unit; and whether there is agreement among

the parties as to the appropriateness of the proposed unit.

conference pursuant to the procedures specified in Part 212 of this Chapter.

judge, in which event a notice of hearing specifying the time and place of the hearing

shall be served upon the parties. The conduct of the hearing shall be in accordance with

the procedures specified in Part 212 of this Chapter.

a representation case may agree on a method by which the director may determine the question

of representation.

the consent of the parties, the director shall dispose of the questions concerning representation.

negotiating unit is limited to selecting or rejecting a single employee organization, that

choice may be ascertained by the director on the basis of dues deduction authorizations

and other evidence instead of by an election. In such case, the employee organization

involved will be certified without an election if a majority of the employees within the

unit have executed a showing of interest pursuant to section 201.4 (b) of this Part which

remains current as defined in that section. Any new or additional evidence of majority

support shall be accompanied by a declaration of authenticity, as defined in section 201.4

support are not sufficient for certification without an election is a ministerial act and will

not be reviewed by the board. The director shall inform all parties in writing if the

director determines that the indications of employee support are sufficient for

certification without an election. The director’s determination in this respect is

reviewable by the board pursuant to a written objection to certification filed with the

board by a party within five working days after its receipt of the director’s notification.

An objection to certification shall set forth all grounds for the objection with supporting

facts and shall be served on all parties to the proceeding. A response to the objection may

be filed within five working days after a party’s receipt of the objection. A copy of any

response shall be served on all other parties.

employees within a negotiating unit includes more than one employee organization, or

when the only employee organization seeking certification does not produce indications

of employee support sufficient for certification without an election. If the director

determines that an election shall be held, such election shall be conducted by an agent of

the board at such time and place and upon such terms and conditions as the board, the

director or the agent may specify.

elections. All elections shall be by secret ballot. Absentee ballots will not be permitted. A

motion to intervene in any such election may be filed pursuant to section 212.1 of this

Chapter, as long as notification of such desire is given to the director within what the

director deems to be a reasonable time prior to the scheduled date of the election.

Whenever two or more employee organizations are included as choices in an election,

any participant may, upon prompt request to and approval by the director, have its name

removed from the ballot; provided, however, that with respect to a petition for

decertification, the employee organization certified or currently recognized may not have

its name removed from the ballot without giving due notice in writing to all parties and

the director, disclaiming any representation interest among the public employees in the

unit. Any party may be represented by observers of its own selection, subject to such

limitations as the director may prescribe. Any party or the board’s agent may challenge,

for good cause, the eligibility of any person to participate in the election. The ballots of

such challenged persons shall be impounded. Upon the conclusion of the election, the

tally of ballots shall be provided to the parties.

conduct affecting the results of the election within five working days after its receipt of a

final tally of ballots. Such objections shall contain a clear and concise statement of the

facts constituting the bases for the objection, including the names of the individuals

involved and the time and place of occurrence of each particular act alleged. The

objections shall be in writing and shall contain a signed affirmation stating, “I affirm

under penalties of perjury under the laws of New York, which may include a fine or

imprisonment, that the foregoing is true, and I understand that this document will be filed

in a proceeding before the Public Employment Relations Board and may be filed in an

action or proceeding in a court of law.” Copies of such objections shall simultaneously be

served upon each of the other parties by the party filing them, and proof of service shall

be filed with the director.

the director of notice of processing of the objections, with proof of service on all other

parties. The answer shall contain a specific admission, denial or explanation of each

allegation of the objection and a clear and concise statement of any other relevant facts.

The original shall be signed and shall contain a signed affirmation stating, “I affirm under

penalties of perjury under the laws of New York, which may include a fine or

imprisonment, that the foregoing is true, and I understand that this document will be filed

in a proceeding before the Public Employment Relations Board and may be filed in an

action or proceeding in a court of law.”

If a party fails or refuses to file an answer, such failure or refusal may be deemed to

constitute that party’s admission of the material facts in the objections and a waiver by

that party of a hearing.

the election, or if challenged ballots are sufficient in number to affect the results of the

election, the director shall investigate such objections or challenges, or both, and shall

take the appropriate action which may include the direction of a hearing in accordance

with the provisions of Part 212 of this Chapter and the issuance of a decision.

election in which the ballot provides for not less than three choices (i.e., at least two

employee organizations and “neither”) results in no choice receiving a majority of the

valid ballots cast. Only one runoff shall be held pursuant to this section, unless the board

directs otherwise.

choices receiving the largest number of votes, the sum of whose votes aggregate at least

one more than half of the total votes cast. Upon the conclusion of the runoff election, the

provisions of subdivision (d) of this section shall govern insofar as applicable.

Employer applications for designation of persons as managerial or confidential

persons as managerial or confidential as defined in section 201.7(a) of the act shall be on

a form prescribed by the board for that purpose and shall be filed with the director. Prior

to the issuance of a decision by the administrative law judge pursuant to section 201.10 of

this Part, an application may be withdrawn only with the consent of the director. After the

issuance of a decision by the administrative law judge, the application may be withdrawn

only with the consent of the board. Whenever the director or the board, as the case may,

be approves withdrawal of any application, the case shall be closed.

which the public employer is seeking to have designated as managerial or confidential;

provided, however, that if any such persons are represented by a recognized or certified

employee organization, such employee organization is a party in their stead.

that with respect to any persons who are in a unit for which an employee organization has been

recognized or certified, only one application which has been processed to completion may be

filed during a period of unchallenged representation status.

section, notice thereof, including the date when such application was filed with the director, shall

be served by the public employer upon each of the persons who are within any of the job titles

which the public employer is seeking to have designated as managerial or confidential, and upon

any employee organization which has been recognized or certified to represent any of them.

or confidential, and the number of persons in each job title;

by a recognized or certified employee organization or whether an employee organization

is presently seeking to represent the persons occupying any of these job titles and the

name of the employee organization;

managerial or confidential, the public employer shall specify the duration, the parties, and

the unit involved in the contract;

the designation of any of these job titles as managerial or confidential;

persons who are within any of the job titles which it is alleged are managerial or

confidential, and to any employee organization which has been recognized or certified to

represent any of them; and

identify job duties performed which allegedly form the basis for the designation sought.

shall file with the director within 10 working days after receipt of a copy of the application from

the director, a response to the application containing a signed declaration of its truthfulness by an

identified representative of the responding party, with proof of service of a copy thereof upon all

other parties. The response shall include a specific admission, denial or explanation of each

allegation made by the applicant and a clear and concise statement of any other facts which may

bear on the application. If a responding party objects to the processing of an application on the

ground that it was filed earlier than the time provided in subdivision (b) of this section, the

response shall include a specific, detailed statement of why the application is untimely. Such

objection to the processing of the application, if not duly raised, may be deemed waived.

pursuant to section 201.10 of this Part, an application may be withdrawn only with the consent of

the director. After the issuance of a decision by the administrative law judge, the application may

be withdrawn only with the consent of the board. Whenever the director or the board, as the case

may be, approves withdrawal of any application, the case shall be closed.

questions raised by the application.

pursuant to the procedures specified in Part 212 of this Chapter.

of hearing specifying the time and place for the hearing shall be served on the parties. The

conduct of the hearing shall be in accordance with the procedures specified in Part 212 of this

Chapter.

Decision by administrative law judge

Upon completion of proceedings, the administrative law judge shall issue a decision and submit

the record of the case to the board. The record shall include the petition or application, notice of

hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exceptions,

documentary evidence, any briefs or other documents submitted by the parties, objections to the

conduct of an election or conduct affecting the results of an election, and the decision of the

administrative law judge.

Exceptions to decision of administrative law judge; action by board

this chapter.