Title 4 Part 204

The charge shall include the following:

Where the primary basis of the dispute between the parties is alleged to be a disagreement as to the scope of negotiations under the act, either party may request of the director or an assigned administrative law judge that the matter be accorded expedited treatment.

The director or administrative law judge designated by the director may permit a charging party to amend the charge upon good cause shown before, during or after the conclusion of the hearing upon such terms as may be deemed just and consistent with due process.

A charge may be withdrawn by the charging party before issuance of a decision and recommended order based thereon upon approval by the director. Thereafter, a charge may be withdrawn only with the approval of the board. Requests to the director to withdraw a charge or to the board to withdraw a charge will be approved unless to do so would be inconsistent with the purposes and policies of the act or due process of law. Whenever the director approves the withdrawal of a charge, or the board approves the withdrawal of the charge, the case will be closed without consideration or review of any of the issues raised by the charge.

If, upon review of the charge, the director determines that it involves primarily a dispute between the parties as to the scope of negotiations under the act, the director or an assigned administrative law judge shall forthwith schedule a conference for the purpose of inquiring further into the matter. Such an administrative determination is a ministerial act and will not be reviewed by the board.

The respondent shall file with the director an original and 4 copies of an answer to the charge, with proof of service of a copy thereof on all other parties within 10 working days after receipt of a copy of the charge from the director. Should the chairperson authorize electronic filing of such answer, the filing of a signed paper original consistent with this section and electronic filing and service of a copy shall constitute compliance with the filing and service requirements herein contained. 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.”

If the respondent believes that a charge is so vague and indefinite that it cannot reasonably be required to frame an answer, the respondent may, within 10 working days after receipt of a copy of the charge from the director, file, in the same manner as would be applicable to the filing of an answer, a motion with the administrative law judge, with proof of service on all other parties, for an order directing the charging party to file a verified statement supplying specified information. The charging party may likewise file a response to the motion within seven working days after its receipt thereof, with proof of service of a copy of the response on all other parties. The filing of such motion will extend the time during which the respondent must file and serve its answer until 10 working days after receipt of the ruling of the administrative law judge on the motion, or until such later date as the administrative law judge may set. The failure of a party to timely comply with an order of particularization may, in the discretion of the administrative law judge, constitute ground for precluding the party from offering any evidence as to the matters dealt with by the order.

If the charging party believes that the statement of facts supporting any affirmative defense is so vague and indefinite that such charging party cannot reasonably be expected to address them in an expeditious manner at a hearing, such charging party may, within 10 working days after receipt of the answer, file with the administrative law judge in the same manner applicable to the filing of the charge a motion for an order directing the respondent to file a verified statement supplying specified information. The respondent may file a response to the motion within seven working days after its receipt thereof, with proof of service of a copy of the response on all other parties. The failure of a party to timely comply with an order of particularization may, in the discretion of the administrative law judge, constitute grounds for precluding the respondent from offering any evidence as to the matters dealt with by the order.

The administrative law judge may permit the respondent to amend the answer upon good cause shown at any time before or during the hearing, or at any time prior to the issuance of the administrative law judge's decision and recommended order, upon such terms as may be deemed just, consistent with due process.

If the respondent fails to file a timely answer, the administrative law judge may deem such failure to constitute an admission of the material facts alleged in the charge and a waiver by the respondent of a hearing.

Hearings will be conducted in accordance with the procedures set forth in Part 212 of this Title.

Upon closure of the record before an administrative law judge designated by the director, the administrative law judge shall issue a decision and recommended order and submit the record of the case to the board.

A party filing an improper practice charge pursuant to Part 204 of this Chapter may apply to the board for injunctive relief pursuant to section 209-a.4 of the act by filing with the office of counsel at the board's Albany office either by electronic mail, or by filing an original and two copies of a signed application for injunctive relief. An application filed by mail or overnight delivery service shall be filed in an envelope or container prominently bearing the legend "INJUNCTIVE RELIEF APPLICATION" in capital letters on its front. An application that is filed by electronic mail at an address designated by the board for such purpose and published on the agency’s website shall state in the subject line “APPLICATION FOR INJUNCTIVE RELIEF.”

The application shall be filed on a form prescribed by the board which shall give notice of the right to respond pursuant to section 204.8 of this Part. The application form shall include the following:

The charging party shall attach to the application form the following documents:

A party to whom an application for injunctive relief is delivered pursuant to section 204.7 of this Part may file with the office of counsel an original and two copies of a response to the application, with proof of service of a copy of the response on all parties within five days after the application was actually delivered. Alternatively, an original and one copy of a response with proof of service on all parties, may be filed with the office of counsel by either electronic mail at an electronic mail address designated by the board for that purpose, or by fax at a fax number designated by the board for that purpose within five days after delivery of the application. If the response is filed by fax, the responding party shall mail or deliver an original and two copies of the response to the office of counsel by the next working day. Unless otherwise authorized by the office of counsel, copies of the response shall be served on all other parties in the same manner in which the application is filed with the office of counsel. The response 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.” The response shall be deemed filed when received by the office of counsel.

Upon presentation of clear evidence of a compelling need for determination of an application for injunctive relief in fewer than 10 days from its receipt by the board, and upon a determination by the office of counsel that such compelling need exists, the office of counsel may direct that a response, if any, be filed within a specified time earlier than otherwise required by this section.

Within 10 days after receipt by the office of counsel of a completed application for injunctive relief, the board, by its office of counsel, shall determine whether a sufficient showing has been made pursuant to section 209-a.4 of the act. If a sufficient showing has been made, the board by its office of counsel, shall petition Supreme Court for injunctive relief upon notice to all parties or shall issue an order, with notice to all parties, permitting the charging party to seek injunctive relief by petition to Supreme Court. Where a sufficient showing has not been made, notice of that determination, stating the reasons for it, shall be issued by the board by its office of counsel to all parties within 10 days after receipt of the application by the board. Orders permitting the charging party to seek injunctive relief by petition to Supreme Court and notices to the parties that a sufficient showing has not been made may be issued by fax or electronic mail.

Notwithstanding the time limits stated in sections 204.2 and 204.3 of this Part, when injunctive relief is imposed by a court pursuant to section 209-a.4 of the act, after affording the parties an opportunity for consultation, the administrative law judge assigned to the proceeding shall issue a scheduling order or orders setting the dates and times for service and filing of answers, responsive pleadings, motions, responses, briefs, and proposed findings of fact and conclusions of law, and for conduct of a pre-hearing conference and hearing. Unless the parties mutually agree to waive the time limit for conducting the hearing and issuing a decision pursuant to section 209-a.4(d) of the act, scheduling orders shall be fashioned in such a manner as to permit the administrative law judge to issue a decision on the improper practice charge within 60 days after the imposition of injunctive relief in accordance with section 209-a.4(d) of the act.