STATE OF NEW HAMPSHIRE

PUBLIC EMPLOYEE LABOR RELATIONS BOARD

GAA Plaza Building No. 1

153 Manchester Street

Concord, New Hampshire 03301

Tel. (603) 271-2587

 

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.

 

Source.  #7186, eff 1-8-00; ss by #9441-A, eff 3-27-09

 

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 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7186, eff 1-8-00; ss by #9441-A, eff 3-27-09

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91 (see Pub 201.01)

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7186, eff 1-8-00

 

          Pub 102.03  Location and Contact Information.

 

          (a)  The board's offices are located at:

 

Public Employee Labor Relations Board

2 1/2 Beacon Street

Suite 200

Concord, New Hampshire 03301

 

          (b)  The board’s e-mail address is pelrb@nh.gov.

 

          (c)  The board’s telephone number is (603) 271-2587.

 

          (d)  The board’s website may be found at www.nh.gov/pelrb.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7186, eff 1-8-00; ss by #9441-A, eff 3-27-09; ss by #12378-A, eff 9-13-17

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7186, eff 1-8-00; ss by #8425, eff 9-1-05; ss by #9441-A, eff 3-27-09

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7186, eff 1-8-00; ss by #8425, eff 9-1-05; ss by #9441-A, eff 3-27-09

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91 (see Pub 201.03)

 

New.  #5679, eff 8-4-93 (from Pub 102.02), EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by 9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09

 

          Pub 201.02  Unfair Labor Practice Complaints.

 

          (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 Pub 201.01.

 

          (b)  The complaint 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 Form U-1 “Unfair Labor Practice Complaint,” dated 9-15-16.

 

          (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 RSA 273-C:14.

 

          (e)  At the time the complainant files a complaint, the complainant shall certify, by signing in the Certificate of Service section of the Form U-1 “Unfair Labor Practice Complaint,” dated 9-15-16, 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 board Form C-1 “Certificate of Posting,” dated 9-15-16, 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91 (see Pub 201.03)

 

New.  #5679, eff 8-4-93 (from Pub 201.01), EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9081-B, eff 1-29-08; ss by #9441-B, eff 3-27-09; ss by #12378-A, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-A, eff 9-13-17

 

          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.

 

Source.  #5679, eff 8-4-93 (from Pub 102.03), EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09

 

          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.

 

Source.  #5679, eff 8-4-93 (from Pub 201.03), EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

          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.

 

Source.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

        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.

 

Source.  #7187, eff 1-8-00; EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #7187, eff 1-8-00; EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #7187, eff 1-8-00; EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #7187, eff 1-8-00; EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          Pub 201.12  Public Hearings.  All hearings shall be open to the public subject to the provisions of RSA 91-A.

 

Source.  #7187, eff 1-8-00; EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #9441-B, eff 3-27-09; ss by #12378-A, eff 9-13-17

 

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 uncontested 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by #9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by #9441-A, eff 3-27-09

 

          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 completing and filing a separate Form A-4 “Appearance,” dated 9-15-16, 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 Form A-4 “Appearance,” dated 9-15-16.

 

          (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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by #9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09; amd by #12378-A, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by #9441-A, eff 3-27-09 (from Pub 203.02)

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss and moved by #8426, eff 9-1-05 (from Pub 203.03); ss by #9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09 (from Pub 203.03)

 

          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.

 

Source.  #7187, eff 1-8-00; ss and moved by #8426, eff 9-1-05 (from Pub 203.04); ss by #9441-A, eff 3-27-09 (from Pub 203.04)

 

          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.

 

Source.  #7187, eff 1-8-00; ss and moved by #8426, eff 9-1-05 (from Pub 203.05); ss by #9441-A, eff 3-27-09 (from Pub 203.05)

 

          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.

 

Source.  #8426, eff 9-1-05 (from Pub 203.06); ss by #9081-A, eff 1-29-08; ss by #9441-A, eff 3-27-09 (from Pub 203.06)

 

          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.

 

Source.  #9441-A, eff 3-27-09 (from Pub 203.07)

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00; ss by #8426, eff 9-1-05; ss by #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

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 board shall 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 board shall 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.

 

Source.  #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

Source.  #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

PART Pub 207  Records, Reports, 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.  Alternatively, any person may listen to a tape recording of the hearing on the premises of the board.

 

Source.  #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-A, eff 3-27-09

 

          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.

 

          (c)  Within 14 days after a legislative body votes on a collective bargaining agreement or a fact finding report, the public employer shall report to the board the result of such vote, as required under RSA 273-A:16, V, by completing and filing Form R-1 “Public Employer Report,” dated 9-15-16.

 

Source.  #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9145, INTERIM, eff 4-29-08, EXPIRED: 10-26-08

 

New.  #9441-B, eff 3-27-09 (formerly Pub 207.03); ss by #12378-B, eff 9-13-17

 

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) and (b) 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)  The petitioner shall provide this information on Form P-1 “Petition for Certification-New Bargaining Unit,” dated 9-15-16, or Form P-2 “Petition for Certification – Challenge to Existing Representative,” dated 9-15-16.

 

          (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, 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. Employees who wish to submit petition authorization cards shall complete Form A-1 “Authorization Card,” dated 9-15-16, or Form A-3 “Decertification Card,” dated 9-15-16.

 

          (i)  Petition cards shall, at 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.  Employees who wish to revoke a previously signed Form A-1 “Authorization Card” shall complete and file Form A-2 “Revocation of Authorization Card,” dated 9-15-16.

 

          (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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9081-B, eff 1-29-08; ss by #11176, eff 9-16-16; amd by #12378-B, eff 9-13-17

 

          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 by completing and filing Form P-5 “Petition to Intervene,” dated 9-15-16, 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          Pub 301.03  Decertification of Exclusive Representative.

 

          (a) A bargaining unit member(s) seeking to decertify an existing bargaining unit’s exclusive representative shall complete and file form P-3 “Petition for Decertification,” dated 9-15-16, alleging that the members of a bargaining unit no longer wish to be represented by the employee organization presently representing them.  The petition shall contain the same categories of information and shall be treated in the same fashion as a petition filed under Pub 301.01.

 

          (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 RSA 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 replace an existing certified bargaining agent with a new certified bargaining agent, the group shall complete and file Form P-2 “Petition for Certification – Challenge to Existing Representative,” dated 9-15-16, under the applicable provisions of Pub 301.01.

 

          (d)  The group, as petitioners, shall disclose on the Form P-2 “Petition for Certification – Challenge to Existing Representative” 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 replacing an incumbent exclusive bargaining representative 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 Pub 301.03(g), 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. Thereupon:

 

(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 RSA 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 RSA 273-C:10, III.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 14-day 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) above 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).

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          Pub 301.05  Written Majority Authorization.

 

Source.  #9080, INTERIM, eff 1-29-08, EXPIRED: 7-27-08

 

New.  #9243, eff 8-28-08; rpld by #10661, eff 8-27-14

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9081-B, eff 1-29-08; ss by #11176, eff 9-16-16

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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, and issue an order of election when appropriate under Pub 303.01.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 complete and file Form P-4 “Petition for Modification,” dated 9-15-16.

 

          (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 are 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.

 

          (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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; ss by #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 rights 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, including but not limited to:

 

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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 approved by the board.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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)  The Board shall prepare a Certification on Conduct of Election which shall provide the following:

 

(1)  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.

 

          (d)  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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 RSA 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 an 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          Pub 303.13  Absentee Ballots.

 

          (a)  The board shall provide an absentee ballot to any employee who meets the following requirements:

 

(1)  The employee is included in the board’s official list of eligible voters;

 

(2)  On the date of the election, the employee is scheduled to be away from the work place or the employee’s residence at the directive or convenience of the public employer, or is scheduled to be away from the work place and the employee’s residence to use planned annual leave involving travel away from the residence, or is scheduled to be away from the work place and the residence due to circumstances beyond the employee’s control; and

 

(3)  It is not possible or practical for the employee to return to the work place to vote in person during those times when the polls are open given the reasons for the employee’s absence.

 

          (b)  An employee who will be away from the workplace or the employee’s residence on the date of the election during those times when the polls are open because the employee is not scheduled to work on the date of the election, or because the employee is not scheduled to work during the shift when the election will be held, must still vote in person during those times when the polls are open and is not eligible to vote by absentee ballot.

 

          (c)  The parties shall identify any employee who may be eligible to vote by absentee ballot during the pre-election conference.  All such employees who would like to vote by absentee ballot, as well as any other employee who believes he or she should have been so identified, must file a written request with the board stating a desire to vote by absentee ballot.

 

          (d)  The employee’s written request to vote by absentee ballot 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; and

 

(4)  The date of the request which contains this information.

 

          (e)  The board shall process requests to vote by absentee ballot by examining the request for conformity with the requirements of this rule and confirming, as necessary, information provided by the employee with the public employer.

 

          (f)  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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          Pub 303.14  Mail Balloting Elections.

 

          (a) The board shall conduct mail balloting elections in circumstances when on-site balloting is 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 board or its executive director approves the changed format.

 

          (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";

 

(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 return address which identifies the voter by name and address.

 

          (e)  Voter failure to comply with the identity requirements on the mail envelope or destruction of any identifying mark thereon shall disqualify the ballot contained therein from being counted.

 

          (f)  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.

 

          (g)  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.

 

Source.  #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

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, Form U-1 “Unfair Labor Practice Complaint,” dated 9-15-16, alleging a violation of RSA 273-A:5 or RSA 273-C:6, respectively.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

          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)  An interim order is in the public interest for reasons such as, 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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 affect 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)  Pursuant to RSA 273-A:7 and RSA 273-C:8, the board shall petition the superior court for the county in which the party sought to be enjoined is principally located for such an order of the court as may be necessary to compel obedience to an order of the board if:

 

(1)  After the board issues a decision and order in a case, it receives pleadings from a complaining party alleging non-compliance with its decision and order;

 

(2)  The decision and order has not been appealed within the limits of RSA 541:6; and

 

(3)  An investigation or hearing conducted by the board in response to a complaint of non-compliance determines that there is substance to that allegation.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

PART Pub 305  IMPASSE RESOLUTION

 

          Pub 305.01  Request for Intervention.

 

          (a)  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.

 

          (b)  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, based on the subjects being negotiated, the number of times the parties have met to negotiate, the duration of negotiation sessions, and the areas of disagreement, that a reasonable period of negotiation has elapsed.  The board shall intervene itself, or through a neutral third party appointed by the board. 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.

 

          (c)  Persons seeking inclusion on the list of neutrals maintained by the board under RSA 273-A:2, V shall file with the board an application consisting of the following:

 

(1)  A curriculum vitae inclusive of a list and description of their education, credentials, training, experience, and fee schedule;

 

(2)  A list of their bargaining impasse mediations, bargaining impasse fact findings, and arbitration cases over the prior 18 months, including the date, the name of the parties and their representatives, a brief description of the result, and a copy of any recommendation-award-decision if applicable and available; and

 

(3)  Three references, one each from a management representative, a labor representative, and a professional peer who are each familiar with the applicant’s work.

 

          (d)  The board shall approve applications which the board finds demonstrate proficiency and competency in the areas of public sector bargaining impasse mediation, bargaining impasse fact-finding, or grievance arbitration.  The board shall make this determination based upon the applicant’s length and breadth of experience in bargaining impasse mediation, bargaining impasse fact-finding, and grievance arbitration in the field of public sector labor relations, and other factors, such as professionalism, an ability to assist parties dealing with complex legal and factual issues, an ability to manage difficult parties, strong communication and writing skills, and references.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          Pub 305.02  List of Mediators, 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 on Form P-8 “Request for Appointment of Grievance Arbitrator,” dated 9-15-16:

 

(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 shall be provided on Form P-8 “Request for Appointment of Grievance Arbitrator,” dated 9-15-16.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

          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 petitioner 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 Form P-6 “Petition for Appointment of Mediator,” dated 9-15-16.

 

          (d)  The information required in order to request the services of a fact finder shall be provided on Form P-7 “Petition for Appointment of Fact-Finder,” dated 9-15-16.

 

Source.  #2325, eff 3-28-83; ss by #3019, eff 5-14-85; EXPIRED: 5-14-91

 

New.  #5679, eff 8-4-93, EXPIRED: 8-4-99

 

New.  #7093, INTERIM, eff 9-9-99, EXPIRES: 1-7-00; ss by #7187, eff 1-8-00, EXPIRED: 1-8-08

 

New.  #9114, INTERIM, eff 3-27-08, EXPIRED: 9-23-08

 

New.  #9441-B, eff 3-27-09; ss by #12378-B, eff 9-13-17

 

 


APPENDIX

 

Rule

Statute

Pub 101.01

RSA 273-A:2, VI; RSA A:16, I (b); RSA 541-A:30-a, I

Pub 102.01

RSA 273-A:2, VI; RSA A:16, I (a)

Pub 102.03 

RSA 273-A:2; RSA 273-A:6; RSA 273-A:8; RSA 273-A:10; RSA 273-A:12

Pub 103.01

RSA 273-A:2, VI; RSA 273-A:16, II; RSA 541-A:16, I (a).

Pub 103.02

RSA 273-A:2, VI; RSA 273-A:6, II; RSA 273-A:10, I; RSA 273-A:12, I.

 

 

Pub 201.01

RSA 273-A:2, VI; RSA 541-A:30-a, III (a)

Pub 201.02

RSA 273-A:2, VI; RSA 541-A:16, I (b)(2); RSA 273-A:6, I & II

Pub 201.03

RSA 273-A:2, VI; RSA 541-A:16, I (b)(2); RSA 541-A:30-a; RSA 273-A:6, I, II

Pub 201.04

RSA 273-A:2, VI; RSA 273-A:6, II-VII; RSA 541-A:30-a, I

Pub 201.05

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 541-A:31, I, II, and III (a); RSA 273-A:6, I

Pub 201.06

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (d);  RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.07

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.08

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.09

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.10

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.11

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.12

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (h); RSA 541-A:31, I, II, and III (a);
RSA 273-A:6, I

Pub 201.13

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (a); RSA 541-A:31, I; RSA 273-A:6, I

Pub 201.14

RSA 273-A:2, VI; RSA 541-A:30-a, I and III (k); RSA 541-A:31, I; RSA 273-A:2-a

Pub 201.15

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 541-A:31, I; RSA 273-A:6, I; RSA 273-A:8, I

Pub 201.16

RSA 273-A:2, VI; RSA 273-A:16, II

Pub 201.17

RSA 273-A:2, VI; RSA 273-A:6, II

Pub 202

RSA 273-A:2, VI; RSA 541-A:31, V (b) & (c).

Pub 202.01

RSA 273-A:2, VI; RSA 541-A:31, V (b); RSA 541-A:38

Pub 203.01

RSA 273-A:2, VI; RSA 273-A:6 II & IV.

Pub 203.02

RSA 273-A:2, VI;  RSA 273-A:6, II & V; RSA 541-A:30-a, III (b)

Pub 203.02 (a)

RSA 273-A:2, VI; RSA 541-A:30-a, III (b); RSA 273-A:6, II & V

Pub 203.03

RSA 273-A:2, VI; RSA 273-A:6, II & V; RSA 541-A:30-a, III (b)

Pub 203.04

RSA 273-A:2, VI; RSA 273-A:6, II; RSA 541-A:30-a, III (a).

Pub 203.05

RSA 273-A:2, VI; RSA 273-A:6, II; RSA 541-A:30-a, III (a)

Pub 203.06

RSA 273-A:2, VI; RSA 273-A:6, II.

Pub 203.07

RSA 273-A:2, VI; RSA 541-A:30-a, III (i).

Pub 203.07

RSA 273-A:2, VI;  RSA 541-A:31, VII

Pub 204.01

RSA 273-A:2, VI; RSA 273-A:6, VI and VIII

Pub 205.01

RSA 273-A:2, VI; RSA 273-A:6, VIII

Pub 205.02

RSA 273-A:2, VI; RSA 273-A:14; RSA 541:3-5

Pub 205.03

RSA 273-A:2, VI; RSA 273-A:14; RSA 541:6

Pub 206.01

RSA 273-A:2, VI

Pub 206.02

RSA 273-A:2, VI; RSA 541-A:4

Pub 207.01

RSA 273-A:2, VI; RSA 273-A:16, II

Pub 207.02

RSA 273-A:2, VI; RSA 273-A:3, IV; RSA 273-A:16, I

Pub 207.03

RSA 273-A:2, VI; RSA 273-A:3, IV; RSA 273-A:16, I

 

 

Pub 301.01

RSA 273-A, 8; RSA 273-A:10, I-VI; RSA 273-A:11, I (b)

Pub 301.01 (d), (h), & (k)

RSA 273-A:2, VI; RSA 273-A:8; RSA 273-A:10, I-VI; RSA 273-A:11, I (b) 

Pub 301.02

RSA 273-A:2, VI; RSA 541-A:30-a, I, III (g); RSA 273-A:10, I-V

Pub 301.03

RSA 273-A:2, VI; RSA 273-A:10, I-IV

Pub 301.04

RSA 273-A:2, VI; RSA 273-A:8, I; RSA 273-A:10, VI (a)

Pub 302.01

RSA 273-A:2, VI; RSA 273-A:8, I; RSA 273-A:10

Pub 302.02

RSA 273-A:8, I

Pub 302.03

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:8, I; RSA 273-A:10, I

Pub 302.04

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:8, I; RSA 273-A:10, I (b)

Pub 302.05

RSA 273-A:2, VI; RSA 273-A:1, IX; RSA 273-A:8, I

Pub 303.01

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:8, I; RSA 273-A:10, I-V

Pub 303.02

RSA 273-A:2, VI; RSA 273-A:10, I (b)

Pub 303.03

RSA 273-A:2, VI; RSA 273-A:1, IX; RSA 273-A:8, I; RSA 273-A:10, I (b)

Pub 303.04

RSA 273-A:2, VI; RSA 273-A:10, I (b), III & V

Pub 303.05

RSA 273-A:2, VI; RSA 273-A:10, I (b)

Pub 303.06

RSA 273-A:2, VI; RSA 273-A:10, I (b) & III

Pub 303.07

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:10, I (b)

Pub 303.08

RSA 273-A:1, IX; RSA 273-A:2, VI; RSA 273-A:10, I (b)

Pub 303.09

RSA 273-A:2, VI; RSA 273-A:8, III; RSA 273-A:10, I (b) & IV

Pub 303.10

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:10, I (b)

Pub 303.11

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:10, I (b)

Pub 303.12

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:10, I (b) & IV-VI

Pub 303.13

RSA 273-A:2, VI; RSA 273-A:10, I (b)

Pub 303.14

RSA 273-A:2, VI; RSA 273-A:10, I (b)

Pub 304.01

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:5; RSA 273-A:6, I

Pub 304.02

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:6, III

Pub 304.03

RSA 273-A:2, VI; RSA 541-A:30-a, I; RSA 273-A:6; RSA 273-A:7

Pub 305.01

RSA 273-A:2, V & VI; RSA 541-A:30-a, I; RSA 273-A:12, I; RSA 273-A:3

Pub 305.02

RSA 273-A:2, V & VI; RSA 273-A:12, I

Pub 305.03

RSA 273-A:2, VI; RSA 273-A:5, I (e) and II (d); RSA 273-A:12, I

Pub 305.04

RSA 273-A:2, VI; RSA 273-A:5, I (e) and II (d); RSA 273-A:12, I