Title 4 Part 204

Charge

agents, has engaged in, or is engaging in, an improper practice may be filed with the

director by one or more public employees or any employee organization acting in their

behalf, or by a public employer, within four months of when the charging party first

knew, or reasonably should have known, of the alleged improper practice.

claim by an employee organization that a public employer or its representatives engaged

in such acts of extreme provocation as to detract from the responsibility of the employee

organization for a strike, then the charge may not be filed after the date on which the

employee organization is required to file its answer to the strike charge pursuant to

section 206.5 of this Chapter.

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.”

representative filing the charge;

therein;

facts constituting the alleged improper practice, including the names, and, where known

or relevant, the titles and work locations of the individuals involved in the alleged

improper practice; the date and the place of the occurrence of each particular act alleged;

and the subsections of section 209 a of the act alleged to have been violated. Evidentiary

exhibits may be attached but will not relieve the charging party of the requirement to

provide sufficient factual particulars as set forth herein;

whether the charging party has notified the board in writing of the existence of an

impasse pursuant to section 205.1 of this Chapter; and

conference and the formal hearing immediately.

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.

shown 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 and consistent with due process.

The motion shall include a statement of good cause to justify the amendment, a proposed

amended charge, and proof of service upon all other parties. A respondent may file a response to

the motion within five working days after its receipt thereof, with proof of service of the

response on all other parties.

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.

Initial processing by director

determine whether the facts as alleged may constitute an improper practice as set forth in section

209 a of the act. If the director determines that the facts as alleged do not, as a matter of law,

constitute a violation, or that the charge as pleaded is not timely, the director may dismiss it

subject to review by the board under Part 213 of this Chapter; alternatively, the director may

permit the party to amend the charge to cure such deficiency in the charge. If the deficiency is

not cured, the director may dismiss the charge or deem the charge, or any part thereof,

withdrawn.

notice of conference pursuant to Part 212 of this Chapter shall be prepared by the director

or a designated administrative law judge specifying the time and place for the conference

and, together with a copy of the charge, shall be delivered to the charging party and each

named respondent.

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.

Answer

thereof on all other parties within 10 working days after receipt of a copy of the charge. 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.”

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, file 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 five 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.

allegation of the charge or, if the respondent is without knowledge thereof, the answer

shall so state and such statement shall operate as a denial. Admissions or denials may be

made to all or part of an allegation, but shall fairly meet the circumstances of the

allegation.

including but not limited to an allegation that the violation occurred more than four

months before the filing of the charge. A clear and concise statement of the facts

supporting any affirmative defense, including the names of the individuals involved and

the date and place of the occurrence of each particular act alleged, shall be set forth. An

answer to an alleged violation of section 209-a.1(g) of the act shall identify the statute,

interest arbitration award, collectively negotiated agreement, policy, or practice that

forms the basis of the employer’s affirmative defense, if any.

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 a motion with the

administrative law judge for an order directing the respondent to file a verified statement

supplying specified information. The respondent may file a response to the motion within five

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.

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. The motion shall

include a statement of good cause to justify the amendment, a proposed amended charge, and

proof of service upon all other parties. A charging party may file a response to the motion within

five working days after its receipt thereof, with proof of service of the response on all other

parties.

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.

209-a.3 of the act may file responsive pleadings in accordance with subdivisions (a)-(e) of this

section. The administrative law judge may deem the public employer’s failure to file any

responsive pleading to constitute a waiver of the public employer’s right to participate in any

hearing held on the allegations of impropriety set forth in the charge.

Expedited determinations

if one or more of the parties has made a request that a dispute involving primarily a disagreement

as to the scope of negotiations under the act be processed expeditiously, or if the director shall

deem it appropriate to do so, the director shall so notify the board and transmit the papers to the

board. The board shall then inform the parties as to whether it will accord expedited treatment to

the matter. If the board determines that the matter will be expedited, it will also notify the

respondent of the due date for its answer, and the parties of the due date for briefs. The board

may also direct that oral argument be held before it, or that a hearing be held before the full

board, one of its members, or an administrative law judge. If the board determines that expedited

treatment will not be accorded, the matter will be handled in accordance with sections 204.2(b)

and 204.3 of this Part and Parts 212 and 213 of this Chapter.

shall, within a reasonable period of time after a conference, make a preliminary determination

whether a dispute presents an issue or issues of law relating to the scope of any duty of fair

representation allegedly owed by an employee organization to a non-member, or to any member

seeking to terminate membership in an employee organization, or related question. After such

preliminary determination, the director shall, upon determining that the matter warrants

expedited treatment, so notify the board and transmit the papers to the board. A determination by

the director that the matter does not warrant expedited treatment shall not be subject to review by

the board pursuant to Part 213. If the board determines that expedited treatment of the matter is

warranted, it will so inform the parties. The board will notify the parties of the due date for

briefs, and may also direct that oral argument be held before it, or that a hearing be held before

the full board, one of its members, or an administrative law judge. If the board determines that

expedited treatment will not be accorded, the matter will be remanded and processed in

accordance with sections 204.2(b) and 204.3 of this Part and Parts 212 and 213 of this Chapter.

evidence, may be oral or written, must be accompanied by a short statement of the

grounds for such objection, and shall be included in the record.

judge who may be assigned to hold the hearing. Upon the completion of the hearing, such

board member or administrative law judge shall transmit the record to the full board for a

determination without making any recommendations.

Hearing procedures

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

Chapter.

Decision and recommended order by administrative law judge

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.

Application for injunctive relief

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 or hardcopy

mail. The post office and electronic mailing addresses designated by the board for the purpose of

filing an application for injunctive relief are published on the agency’s website. To file by

electronic mail, a party shall file a signed application for injunctive relief with the email address

designated by the board for such purpose. To file by hardcopy mail, a party shall file an original

signed application by mail or overnight delivery service, which 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.” An application, in any format, received by the

office of counsel after 5:00 p.m. on the day of filing shall be deemed filed when processed on the

next business day and the 10-day review period referenced in section 204.9 of this Part shall not

commence until the application has been processed on the next business day.

shall give notice of the right to respond pursuant to section 204.8 of this Part. The application

form shall include the following:

any, of the charging party;

representative filing the application on behalf of the charging party;

attorney or other representative who will represent the charging party during the

processing of the application, if different from the representative named in response to

paragraph (2) above;

public employer or employee organization named as a party to the improper practice

charge, including the name, address, electronic mail address, and telephone number for

the Chief Legal Officer upon which the application has been delivered, as referred to in

section 204.7 (c)(4) of this Part;

following documents:

personally known to the deponent that constitute the alleged improper practice, the date

of the alleged improper practice, the alleged injury, loss, or damage arising from it, and

the date when the alleged injury, loss, or damage occurred or will occur; and (ii) why the

alleged injury, loss, or damage is immediate, irreparable, and will render a resulting

judgment on the merits of the improper practice charge ineffectual if injunctive relief is

not granted by the court, and why there is a need to maintain or return to the status quo in

order for the board to provide meaningful relief. Such affirmations shall be signed and

shall state “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 filed electronically, the

affirmation or affirmations shall be in text searchable format;

application for injunctive relief and all supporting documents was delivered to the

respondent’s chief legal officer in an envelope bearing the legend “ATTENTION: CHIEF

LEGAL OFFICER” in capital letters on its front, and the method and date that such

delivery was made. If delivery to respondent’s chief legal officer is made by electronic

mail, the email shall state in the subject line “APPLICATION FOR INJUNCTIVE

RELIEF.” If delivery to the respondent’s chief legal officer is not by electronic mail or

personal service, proof of delivery must establish when the respondent’s chief legal

officer actually received the completed application and all supporting documents. An

application for injunctive relief filed without proof of service on respondent and delivery

to respondent’s chief legal officer will be rejected; and

application for injunctive relief. If filed electronically, the application for injunctive relief

shall be in text searchable format.

Response to application for injunctive relief

to section 204.7 of this Part may file with the office of counsel by either electronic or hardcopy

mail within five days after the application was served on respondent and delivered to its chief

legal counsel; or, if service and delivery were effected on different dates prior to filing, the five

day response period runs from the latter date. 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; or, if consent for alternative service has been

given by the applicant, it shall be the responsibility of respondent to notify the office of counsel

of the same. 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 and may be filed in an action or

proceeding in a court of law.” The response shall be deemed filed when received by the office of

counsel and any response, in any format, received by the office of counsel after 5:00 p.m. on the

day of filing shall be deemed filed when processed the next business day.

filing, believes it could rightfully assert in an answer or responsive pleading to the

improper practice charge, including any affirmative defenses pursuant to section

204.3(c)(2) of this Part. The response shall not constitute an answer or responsive

pleading to the improper practice charge pursuant to section 204.3 of this Part, and

asserting or not asserting any affirmative defense or other defense in the response shall

not prejudice any party with regard to defenses or affirmative defenses that party may

plead or not plead in an answer or responsive pleading filed pursuant to that section.

personal knowledge of the relevant facts and documentary evidence attached to the

affidavit. Such affirmation shall be signed and shall state “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 filed electronically, the affirmation or affirmations shall be in text

searchable format.

application for injunctive relief. If filed electronically, the affidavit or affidavits shall be

in searchable format and shall not be scanned copies of the original documents.

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.

Review of application for injunctive relief

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 or has not been made may be issued by fax or electronic mail.

Expedited treatment where injunctive relief imposed

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 concluding 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.